                IN THE SUPREME COURT, STATE OF WYOMING
                                        2017 WY 16
                                                          OCTOBER TERM, A.D. 2016

                                                                 February 16, 2017
IN THE MATTER OF THE WORKER’S
COMPENSATION CLAIM OF:

VALERIE PRICE,

Appellant
(Petitioner),

v.                                                   S-16-0160

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

Appellee
(Respondent).
                    Appeal from the District Court of Fremont County
                       The Honorable Norman E. Young, Judge
Representing Appellant:
      Sky D Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney
      General; Michael J. Finn, Senior Assistant Attorney General; James M. Causey,
      Senior 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] Valerie Price suffered a work injury in 2004. As a result, she had shoulder surgery
in 2005, which was covered by the Wyoming Workers’ Compensation Division
(Division). In 2013, Ms. Price sought benefits for surgery on the same shoulder to treat
calcific tendinitis. Her surgeon found a hole in the fascia over the acromioclavicular joint
during the 2013 surgery, which may have occurred during the 2005 surgery. She
therefore contended that the 2013 surgery was a second compensable injury. The
Division denied her claim. After a hearing, the Medical Commission (Commission)
determined that Ms. Price had not proven the 2013 surgery was causally related to her
2004 injury and subsequent treatment. Ms. Price appealed, and the district court affirmed
the Commission’s ruling. Ms. Price timely appealed, and we affirm.

                                         ISSUES

[¶2]   We rephrase the issues as:

       1. Was the Medical Commission Hearing Panel’s conclusion that there was no
causal link between Ms. Price’s work-related injury and the need for her 2013 surgery
supported by substantial evidence?

      2. Did the Medical Commission Hearing Panel improperly apply apportionment
when it concluded that Ms. Price’s 2013 surgery was not compensable?

                                         FACTS

[¶3] Valerie Price hurt her right shoulder at work in 2004 when she took the trash
outside and slipped and fell on ice. As a result, in 2005 she had a right shoulder
arthroscopy, which was covered by the Division. She reported continued right shoulder
pain over the following years. In 2013, she saw Dr. Bienz for right shoulder pain, and he
diagnosed calcification and recommended arthroscopic debridement. Dr. Bienz noted
that he had reviewed “the x-rays from 2005, and at that time, there was not much
calcification in the rotator cuff, but on today’s images, there is a significant amount of
soft tissue calcification . . . .” He observed:

              The other question here, of course, is whether this is truly
              related to the initial injury. She is of the impression that her
              shoulder “would always be covered” because of the initial
              incident that led to the [2005 surgery], however, the fact that
              she had no calcific tissue in 2005 when she was last treated
              by me and has since developed substantial calcific tendinitis
              would suggest that this calcific tissue developed since her last
              incident, not necessarily because of her last incident.


                                             1
The Division denied coverage for the surgery. Dr. Bienz performed the right shoulder
arthroscopy with debridement on May 17, 2013. During the course of that surgery, he
noted “a large hole in the acromioclavicular joint where the previous procedure
apparently caused the fascia to separate or perhaps it was never repaired.” He determined
that the hole was communicating fluid to the joint surface and repaired it.

[¶4] Dr. Bienz testified that he did not believe the calcific tendinitis for which he
treated Ms. Price in 2013 was caused by her 2004 workplace injury.

                   Q. Okay. Now, do you have any opinion as to
             whether Ms. Price’s calcific tendinitis is related to her
             workplace injury?

                     A. Well, I mean, it is -- it’s certainly related. I mean,
             it’s in the same side. It’s the same joint. You know, there is
             some relationship there. But for a variety of reasons outlined
             in that other note, I don’t think it likely that the fall carrying
             the garbage caused her to later develop calcific tendinitis.
             And part of that is also even more information than what we
             had in April, is that she has subsequently developed rather
             significant calcific tendinitis in the opposite shoulder, as well,
             which was treated by my partner, Dr. Carlson. And you
             know, there was no injury to the opposite shoulder when she
             fell.

[¶5] Dr. Bienz testified that he assumed the hole in the acromioclavicular joint, which
he repaired, was most likely caused by the original 2004 surgery, “unless she developed a
tear . . . after the fact . . . .” When asked why it was necessary to do that repair, he
responded:

                    A. I don’t know if “necessary” is the right word, but
             basically when you’re doing a procedure, especially on a
             patient like this who has pain but you’re never quite sure why
             they have pain, you do attempt to correct any abnormality that
             you find so that you can minimize the chance that they’re
             going to continue to have pain.

                  And in this case, you know, what I noticed is that there
             was fluid coming down from up there, which shouldn’t be
             happening, because normally that’s a sealed area. And so we
             went up and looked, and we did in fact find a communication
             to the subacromial space through that fascial tear.


                                             2
                     Q. And could -- could this be causing part of the pain
             that Ms. Price was suffering from that caused you to go in and
             try to do the repair?

                     A. I guess it’s possible. It didn’t seem real likely, but
             that’s certainly possible . . . .

                    ....

                    Q. So in your opinion, it was something that needed
             to be done?

                   A. I think it should have been done, yes. If you find
             an opening communicating the subacromial space to the
             subcutaneous space, it should be sealed if possible.

                    Q. And you feel that this was related to the previous
             surgery done in 2005 that was preceded by the fall and caused
             by the fall. Is that safe to say?

                   A. I do believe that the defect in the fascia over the
             AC joint was related to and caused by the original surgery
             done with an arthroscope in 2005, yes.

[¶6] Ms. Price’s providers submitted bills for her 2013 surgery, and the Division denied
payment. Ms. Price appealed and after an evidentiary hearing, the Commission
determined that she had “failed to prove by a preponderance of the evidence that the
medical treatment she received was causally related either to her work place injury on
December 25, 2004, or the initial surgery she received on her right shoulder on March 11,
2005” for that injury. The district court affirmed the Commission’s ruling. Ms. Price
timely appealed to this Court.

                              STANDARD OF REVIEW

[¶7] We treat an appeal from a district court’s review of an administrative agency’s
decision as if it had come directly from the administrative agency and give no deference
to the district court’s decision. Kenyon v. State ex rel. Wyo. Workers’ Safety & Comp.
Div., 2011 WY 14, ¶ 10, 247 P.3d 845, 848 (Wyo. 2011); Dale v. S & S Builders, LLC,
2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008). Our review is controlled by Wyo.
Stat. Ann. § 16-3-114(c) (LexisNexis 2015):




                                            3
             (c) . . . 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;

                         ....

                         (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.

Accordingly, we review the agency’s findings of fact by applying the substantial
evidence standard. Worker’s Comp. Claim of Bailey v. State ex rel. Wyo. Dep't of
Workforce Servs., 2015 WY 20, ¶¶ 10-12, 342 P.3d 1210, 1213 (Wyo. 2015); Dale, 2008
WY 84, ¶ 21, 188 P.3d at 561. Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Matter of Worker’s
Comp. Claim of Jensen v. State, 2016 WY 87, ¶ 13, 378 P.3d 298, 303 (Wyo. 2016)
(citing 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. (citing Kenyon, 2011 WY 14, ¶ 11, 247 P.3d at 849; Bush, 2005 WY 120, ¶ 5, 120
P.3d at 179).




                                             4
                    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. 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.

Worker’s Comp. Claim of Bailey, 2015 WY 20, ¶ 11, 342 P.3d at 1213 (citations
omitted). Finally, “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.” Id. at ¶ 12, 342 P.3d at
1213 (citations omitted).

                                     DISCUSSION

I. Was the Medical Commission Hearing Panel’s conclusion that there was no causal
   link between Ms. Price’s work-related injury and the need for her 2013 surgery
   supported by substantial evidence?

[¶8] Ms. Price asserts that the Commission’s conclusion that she had not established a
causal connection between her workplace injury and her 2013 surgery was not supported
by substantial evidence. Although she concedes that the calcific tendinitis which the
2013 surgery was aimed at resolving was not work related, she claims that the “defect in
the fascia over the AC joint was related to and caused by” her 2005 arthroscopic surgery.
(Emphasis omitted.) She therefore contends that she demonstrated by a preponderance of
the evidence that her second injury was caused by the original injury, as required under
the second compensable injury rule. The Division counters that the Commission properly
considered and rejected testimony by Ms. Price’s physician, Dr. Bienz, regarding the
causal connection between her first and subsequent injuries.

[¶9] The parties do not dispute that the second compensable injury rule governs. “The
second compensable injury rule applies when ‘an initial compensable injury has resulted
in an injury or condition that requires additional medical intervention.’” Worker’s Comp.
Claim of Jensen, 2016 WY 87, ¶ 17, 378 P.3d at 304 (quoting Ball v. State ex rel. Wyo.


                                            5
Workers’ Safety & Comp. Div., 2010 WY 128, ¶ 24, 239 P.3d 621, 628 (Wyo. 2010)).
“Under the rule, a subsequent injury is compensable if it is causally related to the initial
compensable work injury.” Rogers v. State ex rel. Wyo. Workers’ Safety & Comp. Div.,
2012 WY 117, ¶ 14, 284 P.3d 815, 819 (Wyo. 2012) (quoting Alvarez v. State ex rel.
Wyo. Workers’ Safety & Comp. Div., 2007 WY 126, ¶ 18, 164 P.3d 548, 552 (Wyo.
2007)). An employee claiming benefits under the second compensable injury rule has the
burden of proving by a preponderance of the evidence that there is a causal connection
between the first and second injuries. Guerrero v. State ex rel. Dep’t of Workforce
Servs., Workers’ Comp. Div., 2015 WY 88, ¶ 29, 352 P.3d 262, 271 (Wyo. 2015). To
receive benefits, Ms. Price had to prove by a preponderance of the evidence that the
condition treated in her 2013 surgery was causally connected to her 2004 work injury.
See Hoffman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2012 WY 164, ¶ 9, 291
P.3d 297, 301-02 (Wyo. 2012) (explaining that to recover, the employee “had to prove
that his initial work injury ripened into a condition requiring additional medical
intervention”).

[¶10] The Commission concluded that the evidence did not reveal that the opening in the
fascial tissue was caused by the initial injury or subsequent 2005 surgery:

                  In this case the work injury occurred in 2004 and involved
              Price’s right shoulder. In 2005 surgery was performed by Dr.
              Harp to repair the shoulder. Price continued to experience
              pain and went to see Dr. Bienz. In 2005-2006 Dr. Bienz was
              unable to determine the source of the complaints of shoulder
              pain, but did not see calcific tendonitis, or a need for further
              surgery. After a hiatus in treatment, in 2013 Dr. Bienz found
              significant calcific tendonitis in the right shoulder and
              performed surgery for that condition. Dr. Bienz did not
              attribute the condition to either the work injury or the 2005
              surgery. In the process of the surgery for calcific tendonitis
              Dr. Bienz discovered a hole in the fascial tissue over the
              acromioclavicular joint and repaired it with a couple sutures.
              Dr. Bienz “assumed” the hole was the result of the 2005
              surgery or some later trauma. This is a case in which medical
              testimony is necessary to establish causation. The causal
              connection between Price’s right shoulder condition in 2013
              and the work injury or 2005 surgery cannot be established by
              testimony alone.

(Emphasis added.)




                                             6
[¶11] The Commission then supplied some of its own medical testimony:

                      Some drainage of fluids during an arthroscopic surgery
              is entirely normal. The repair to close the hole by Dr. Bienz
              amounted to no more than a couple sutures. Medical
              necessity is more than this.

[¶12] The Commission then went on to conclude:

                  The medical treatment must not only be necessary but
              causally related to the work injury or a second compensable
              injury. Dr. Bienz “assumed” the hole in the fascial tissue
              was caused by the surgery in 2005, but he never explained
              why he assumed this. He seemed equally prepared to believe
              that the hole was caused by some other unrelated trauma after
              2005.

                 ....

              The testimony of Dr. Bienz that the opening in the fascial
              tissue over the acromioclavicular joint was possibly caused
              during the surgery in 2005 or some other trauma suffered by
              Price, is unpersuasive and insufficient to show the causal
              relationship necessary to make the surgery compensable.

(Emphasis added.)

[¶13] Ms. Price argues that the Commission improperly supplemented its conclusions
with its own evidence that was not contained in the record. Ms. Price also contends that
the Commission erroneously selected portions of Dr. Bienz’s testimony while ignoring
others. She claims that his testimony “unequivocally” stated that the hole in the fascia
was caused by the 2005 surgery.

[¶14] After a thorough review of the record and the Commission’s findings, we
conclude that Ms. Price is correct in her arguments that the Commission erroneously
supplemented the facts with evidence that was not in the record, and the Commission’s
conclusion that Dr. Bienz “assumed” the hole in the fascial tissue was a result of the prior
surgery was not supported by substantial evidence. Although we find that Ms. Price is
correct on both points, we will affirm the Commission’s denial of benefits because there
is not sufficient evidence in the record to demonstrate that the repair of the hole in the
fascial tissue was necessary.




                                             7
[¶15] We first examine the Commission’s supplementation of the evidence. In addition
to observing that drainage was normal and the repair only required a couple of sutures,
the Commission commented that closing the hole “was a minor technical matter.” There
was no evidence in the record to support these statements. We recognize that members of
the Commission have medical expertise which enables them to understand and render
decisions in technical cases like this one. As the trier of fact, the Commission must
weigh the evidence and determine witness credibility. See Hoffman, 2012 WY 164, ¶ 23,
291 P.3d at 305; Brierley v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2002 WY
121, ¶ 16, 52 P.3d 564, 571 (Wyo. 2002). The Commission is entitled to disregard expert
medical opinion if it “finds the opinion unreasonable, not adequately supported by the
facts upon which the opinion is based, or based upon an incomplete or inaccurate medical
history . . . .” Johnson v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2014 WY 33,
¶ 25, 321 P.3d 318, 325 (Wyo. 2014) (citations omitted). However, the Commission is
not free to provide its own version of the facts or to supplement the facts with evidence
that is not contained in the record. It was improper for the Commission to do so here.
We agree that the Commission acted in excess of its authority when it relied upon its own
expert opinions and facts that were not in the record.

[¶16] We now turn to the state of the record regarding the cause of the hole in Ms.
Price’s fascia. Dr. Bienz’s testimony regarding the genesis of the hole in the fascia
included the following:

                Q: [By Mr. Phifer, attorney for Ms. Price] So in your
             notes . . . you talk about, we then elevated the skin flap and
             went up into the acromioclavicular joint. There was a large
             hole in the acromioclavicular joint where the previous
             procedure had apparently caused the fascia to separate or
             perhaps it was never repaired. In this case, this was
             communicating fluid to the joint surface, so I closed this by
             advancing the deltoid into the defect and then proceeded to
             close the deltoid in linear fashion with running zero dash --

                A: [By Dr. Bienz] Zero Vicryl is a type of suture. It’s
             an absorbable suture. And zero just refers to the size of the
             suture.

                 Q: Very good. So -- so was this portion here that I just
             read, was that a repair, then, that you feel was related to or
             caused by the original surgery that was done after that 2004
             fall?




                                           8
                   A: I would assume so, yeah, unless she developed a
              tear, you know, after the fact in that region. But most likely
              that was related to the original arthroscopic release or
              removal of the end of the clavicle. Sometimes if you go a
              little bit high, it actually ends up cutting through the fascial
              tissue, which is hard to recognize if you’re in the scope.
                 ....
                 Q: Okay. And a little clarification on the testimony
              you’ve given regarding the recent May 2013 surgery. We
              were talking about a defect in the fascia over the AC joint.
              And it was your opinion that that was related to the original
              surgery, is that correct?

                 A:     That is correct.

(Emphasis added.)

[¶17] The Division argues that the Commission considered the entirety of Dr. Bienz’s
testimony and properly concluded that it did not establish a causal connection. It argues
that the Commission used the terms “assumed” and “possibly” to describe Dr. Bienz’s
testimony and explain its concerns that the testimony did not adequately explain why he
believed the hole in the fascia was caused during the 2005 surgery, as opposed to some
other event after that surgery. We find that the Commission’s conclusion was contrary to
the overwhelming weight of the evidence and the record as a whole, and the
Commission’s neglect of that evidence was not explained in its findings. “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.” Worker’s Comp. Claim of Jensen, 2016 WY 87, ¶ 13, 378 P.3d at 304 (quoting
Dale, 2008 WY 84, ¶ 22, 188 P.3d at 561 (citations omitted)). However, if the agency
disregards certain evidence and fails to explain its rationale, its decision may not be
supported by substantial evidence.

[¶18] Dr. Bienz’s testimony was that “most likely” the prior surgery created the hole in
the fascia that was repaired in conjunction with the 2013 procedure. Generally, an expert
will sufficiently establish a nexus between work activities and an injury by testifying
“that the work ‘contributed to’ the injury or that the injury is ‘most likely’ or ‘probably’
is the product of the workplace suffices.” Boyce v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2005 WY 9, ¶ 11, 105 P.3d 451, 455 (Wyo. 2005). The Commission’s
determination that there was no causal link between the 2005 surgery and the hole
discovered during the 2013 surgery is not sustainable under the substantial evidence test.
However, the Commission correctly questioned the necessity of repairing the hole.


                                             9
[¶19] Although the record supports the existence of a causal connection between the
2005 surgery and the hole in the fascia, it did not establish that the repair to the hole was
necessary. Dr. Bienz was not aware of the hole in Ms. Price’s fascia until he had
completed the repair of the calcification in her shoulder. He explained, “when we were
done, I noticed that there was fluid flowing from the subcutaneous space a bit more than
there should be, so we kind of were able to look up in there and we saw that irregularity”
and repaired it. He testified that the repair was not in any way related to the calcific
tendinitis.

[¶20] When questioned about whether the repair of the hole was necessary, Dr. Bienz
responded, “I don’t know if ‘necessary’ is the right word.” He went on to explain that

              when you’re doing a procedure especially on a patient like
              this who has pain but you’re never quite sure why they have
              pain, you do attempt to correct any abnormality that you find
              so that you can minimize the chance that they’re going to
              continue to have pain.

Ms. Price’s attorney then asked Dr. Bienz whether the hole could have been causing
some of her pain. Dr. Bienz responded that it was unlikely: “I guess it’s possible. It
didn’t seem real likely, but that’s certainly possible. But still I wasn’t -- finding that
defect, I didn’t think it would be wise to leave it open . . . .”

[¶21] The Wyoming’s Worker’s Compensation Act requires an employee’s medical and
hospital care to be “reasonable and necessary” in order to be covered. Wyo. Stat. Ann.
§ 27-14-102(a)(xii) (LexisNexis 2015). To receive compensation for care, the employee
is “required to establish that [the treatment] was reasonable and necessary medical
treatment related to his workplace injury.” Beall v. Sky Blue Enterprises, Inc., 2012 WY
38, ¶ 23, 271 P.3d 1022, 1032 (Wyo. 2012).

[¶22] The evidence reveals that the condition giving rise to Ms. Price’s subsequent
shoulder surgery was calcific tendinitis, which was not related to her work injury. There
was no evidence that the hole in the fascia contributed to her pain or that its repair was
necessary to treat her symptoms. Thus, the Commission’s conclusion that the 2013
treatment and surgery were not compensable by worker’s compensation is supported by
substantial evidence.




                                             10
II. Did the Medical Commission Hearing Panel improperly apply apportionment
    when it concluded that Ms. Price’s 2013 surgery was not compensable?

[¶23] Ms. Price also argues that the Commission improperly apportioned the relative
contributions of conditions requiring medical intervention. We have recognized and
rejected application of apportionment in cases involving preexisting conditions. Because
we have determined that there was no necessity for the portion of the surgery directed to
repairing the hole, we need not consider whether apportionment was applied improperly
in this case.

                                    CONCLUSION

[¶24] Ms. Price did not establish by a preponderance of the evidence that the repair to
the hole in the fascia over her acromioclavicular joint performed during her 2013 surgery
was necessary. Therefore, the Commission’s conclusion that her medical treatment was
not compensable is supported by substantial evidence. Because her treatment is not
compensable, apportionment is not an issue. Affirmed.




                                           11
