                IN THE SUPREME COURT, STATE OF WYOMING
                                        2013 WY 17
                                                         OCTOBER TERM, A.D. 2012

                                                                 February 8, 2013
IN THE MATTER OF THE WORKER’S
COMPENSATION CLAIM OF:

STEVE HAMPTON,

Appellant
(Petitioner),
                                                     S-12-0076
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:
      David M. Gosar, Gosar Law Office, Jackson, Wyoming.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy
      Attorney General; Michael J. Finn, Senior Assistant Attorney General; Claudia
      Lair, Legal Intern.

Before KITE, C.J., and GOLDEN,* HILL, VOIGT, and BURKE, JJ.
*Justice Golden retired effective September 30, 2012.

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] Steve Hampton, the appellant, was injured in a work-related accident on
December 21, 1996. In November 2009, he was diagnosed with a labral tear in his left
shoulder. The appellant applied to the Wyoming Workers’ Safety and Compensation
Division (Division) for benefits, asserting that the injury was caused by the 1996
accident. The Division denied his claim, a decision that was affirmed by both the Office
of Administrative Hearings (OAH) and the district court. The appellant now appeals that
decision. We affirm.

                                          ISSUES

[¶2] 1. Was the decision of the hearing examiner to deny the appellant’s request for
benefits supported by substantial evidence?

       2. Was the decision of the hearing examiner to deny the appellant’s request for
benefits arbitrary and capricious?

                                          FACTS

[¶3] On December 21, 1996, the appellant was injured in a work-related accident. The
appellant was driving a truck up a steep gradient when the vehicle’s driveline suddenly
gave out. As the truck rolled backward toward the edge of a cliff, the appellant jumped
out of the vehicle, landing on his left side. The appellant applied for and received
workers’ compensation benefits for the injuries suffered in this accident.

[¶4] On the day following the accident, the appellant sought treatment for pain in his
ankle, knee, hip, and back. On May 19, 1998, the appellant visited Dr. Stephen Emery to
determine his impairment rating as a result of the accident. The doctor’s report noted
that, although the appellant’s left shoulder had decreased range of motion compared with
the right shoulder, the MRI “showed no evidence of impingement or rotator cuff
pathology.” Additionally, the radiology report indicated “no evidence of labral or
subscapularis tendon tear.” Over the next decade, the appellant received extensive
medical care, primarily related to injuries sustained to his neck, low back, and left leg and
ankle and was prescribed painkillers to alleviate his discomfort.

[¶5] In August 2009, the appellant was building a dog house with his wife when he
experienced a sharp pain in his left shoulder. The appellant testified that this sort of pain
was not out of the ordinary since the 1996 accident. Dr. Matthew Gorman treated the
appellant and performed an MRI. Unlike the 1998 MRI, this MRI used more modern
technology including gadolinium contrasting. Dr. Gorman’s evaluation of the MRI
indicated a labral tear of the appellant’s left shoulder. The appellant requested payment
of benefits for the treatment of the labral tear from the Division. The Division, however,


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denied the appellant’s request on November 25, 2009, determining that the current
condition of the appellant’s left shoulder was not due to the 1996 work-related accident.
Following the appellant’s appeal of that determination, the OAH affirmed that denial,
which was then affirmed by the district court following an additional appeal by the
appellant. The appellant now appeals the decision of the district court.

                                      DISCUSSION

                    Was the decision of the hearing examiner to deny
                     the appellant’s request for benefits supported
                                by substantial evidence?

[¶6] The substantial evidence test will be applied when this Court reviews an
evidentiary matter. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 11, 188 P.3d 554, 558
(Wyo. 2008).

              “In reviewing findings of fact, we examine the entire record
              to determine whether there is substantial evidence to support
              an agency’s 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.”

Id. (quoting Newman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2002 WY 91,
¶ 12, 49 P.3d 163, 168 (Wyo. 2002)). In an appeal from a district court’s review of an
administrative agency’s action “‘we review the case as if it had come directly to us from
the administrative agency,’” giving no deference to the district court’s decision. Id. at ¶ 8
(quoting Newman, 2002 WY 91, ¶ 7, 49 P.3d at 166).

[¶7] The appellant argues that the hearing examiner’s decision to deny his request for
benefits for his left shoulder injury was based on speculation and was contradicted by the
evidence in the record. Specifically, he argues that the hearing examiner incorrectly gave
greater weight to the opinion of Dr. Kaplan, the doctor who performed the appellant’s
second opinion impairment rating on November 12, 2009, over that of Dr. Gorman, and
that there was no evidence to support the examiner’s contention that the appellant’s work
and recreational activities would have made the labral tear apparent long before 2009.

[¶8] As the claimant for workers’ compensation benefits, the appellant had the burden
of proving that his injury was caused by the work-related accident. Anastos v. Gen.
Chem. Soda Ash, 2005 WY 122, ¶ 20, 120 P.3d 658, 666 (Wyo. 2005). To state the
obvious, the Division need not prove that the injury was not the result of the accident in


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question. The appellant relied heavily, if not entirely, upon the opinion of Dr. Gorman in
his argument that the hearing examiner’s decision was not supported by substantial
evidence. The appellant sought Dr. Gorman’s medical advice on August 28, 2009,
following the sharp pain he experienced while building a dog house. At the appellant’s
request, Dr. Gorman wrote a letter to the Division indicating his belief that the labral tear
was a result of the 1996 accident. His opinion is based on the fact that the earlier MRI
used less modern technology, that the appellant told him he had suffered shoulder pain
since the 1996 accident, and that he was unaware of any other prior injury to the
appellant’s shoulder. The appellant’s medical history, however, indicates that he had
been treated multiple times in the late 1980s for shoulder pain related to an accident
suffered in 1984. That accident resulted in a humeral fracture of the appellant’s left
upper arm and caused the appellant significant pain in his left shoulder as well as
diminished the range of motion of his left arm. The doctor treating him at this time noted
that shoulder surgery may be necessary down the road. Dr. Gorman’s opinion was based
on his misperception that the appellant had no history of injury to his shoulder prior to the
1996 accident.

[¶9] Both Dr. Kaplan and Dr. Gorman agree, and the evidence is clear, that the 1998
MRI did not reveal a tear in the appellant’s left shoulder. The appellant argues that tear
became apparent in the 2009 MRI because of more modern technology, specifically the
use of gadolinium contrast dye. In his letter to the Division, Dr. Gorman stated “it is
certainly a very realistic possibility that his labral injury could have been missed [by the
1998 MRI].” The appellant’s and Dr. Gorman’s suggestion that, with the use of more
modern technology, the tear could have been visible in 1998 is in no way definitive proof
that the tear was a result of the 1996 accident. The appellant’s burden was to show that
not only did he have a labral tear in his left shoulder in 1996, but that the tear was a result
of a work-related accident. That the 1998 MRI may have been inadequate to establish the
presence of a labral tear at best is evidence that the tear had been undetected prior to the
2009 MRI. This is not surprising, as all injuries are undetected until evidence proves
otherwise. This does not, however, provide the hearing examiner with sufficient
evidence to determine that the tear was a result of a work-related accident. At the most, it
suggests that the tear may have occurred before 2009. But it offers no basis to determine
whether the tear occurred at the time of the 1996 accident, or earlier, for that matter.

[¶10] Likewise, the appellant argues that the severe pain he experienced in his back and
neck as a result of the 1996 accident, and the painkillers prescribed to ease that pain,
masked his shoulder pain. This argument presents the same flaws as the appellant’s
contention that his labral tear went unnoticed in 1998 because of a more primitive MRI.
While this may suggest that the injury remained undetected prior to the 2009 MRI, it is
not substantial evidence that the tear was a result of the 1996 accident. The appellant
must show more than that the injury may have occurred prior to the 2009 MRI; he must
also show that the injury was a result of a work-related accident.



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[¶11] The hearing examiner was left with the judgment of Dr. Kaplan, whose opinion
was contrary to that of Dr. Gorman. Based upon a physical examination of the appellant,
as well as a review of his medical history, Dr. Kaplan was unable to determine that there
was a causal relationship between the 1996 accident and the left shoulder labral tear. Dr.
Kaplan relied upon the absence of evidence of a labral tear in the 1998 MRI and the
appellant’s ongoing shoulder pain and diminished range of arm motion, which predated
the 1996 accident. There was substantial evidence in the record to support the hearing
examiner’s conclusion.

                   Was the decision of the hearing examiner to deny
                    the appellant’s request for benefits arbitrary
                                   and capricious?

[¶12] The appellant argues that the OAH, in making its decision, did not sufficiently
review the evidence presented and failed to support its decision with adequate findings
and conclusions. To succeed, the appellant must show that the decision of the OAH was
arbitrary and capricious. Dale, 2008 WY 84, ¶ 23, 188 P.3d at 561.

[¶13] The appellant asserts that the OAH did not make a finding regarding the
credibility of the two witnesses, the appellant and his wife. Both witnesses testified that
the appellant’s shoulder injury was a result of the 1996 accident. Because of the
conflicting opinions of Drs. Gorman and Kaplan, the appellant argues that a credibility
determination was necessary. The appellant contends that this testimony alone, without
accompanying medical evidence, was a sufficient basis upon which to award benefits. In
making this assertion, the appellant cites our holding that “the testimony of an injured
worker alone is sufficient to prove an accident if there is nothing to impeach or discredit
the worker’s testimony, and the worker’s statements are corroborated by surrounding
circumstances.” Nagle v. State ex rel. Wyo. Workers’ Safety & Comp. Div, 2008 WY 99,
¶ 7, 190 P.3d 159, 163 (Wyo. 2008). The facts of Nagle, however, differ significantly
from those presented by the instant case. Nagle was alone when he fell in a work-related
accident, and, thus, the only witness to the accident. Id. At issue was whether the
accident did in fact occur. Id. On the other hand, here there is no doubt that there was a
work-related accident; the matter in dispute is whether that accident is causally related to
the appellant’s shoulder pain.

[¶14] The appellant adds that “‘[w]hen the resolution of a claim for benefits rests
largely, if not exclusively, on an assessment of a claimant’s credibility, a hearing
examiner’s failure to make findings regarding the claimant’s credibility on the record
renders an effective review of the order denying benefits impossible.’” Watkins v. State
ex rel. Wyo. Med. Comm’n, 2011 WY 49, ¶ 17, 250 P.3d 1082, 1087 n.4 (Wyo. 2011)
(quoting Olivas v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2006 WY 29, ¶ 17,
130 P.3d 476, 486 (Wyo. 2006)). In Olivas, the issue before the OAH was whether the
appellant was actively seeking employment, a matter upon which Olivas was in the best


                                             4
position to opine. Olivas, 2006 WY 29, ¶ 16, 130 P.3d at 485. But here, the resolution of
the claim does not rest upon a determination of the appellant’s credibility. The appellant
bore the burden of establishing that the labral tear in his left shoulder resulted from the
1996 accident. He and his wife testified that he had complained of shoulder pain since
1996 and that testimony was considered by the OAH in making its determination. The
appellant argues that medical testimony is not necessary to prove causation when a single
incident is alleged to have caused an injury. Gray v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2008 WY 115, ¶ 17, 193 P.3d 246, 252 (Wyo. 2008). The law on this matter
is not quite so simple. In the case upon which Gray relies, we said that “[i]t is only
where injuries are so immediately and directly or naturally and probably the result of an
accident, [that] medical evidence is not essential to find a causal connection.” Thornberg
v. State ex rel. Wyo. Workers’ Comp. Div. (In re Thornberg), 913 P.2d 863, 867 (Wyo.
1996) (internal quotation marks and citation omitted). Given the long period of time
between the accident and the detection of the labral tear, as well as the fact that the
appellant’s medical records indicate shoulder pain prior to the accident, we cannot say
that the appellant’s shoulder injury was a natural consequence of the truck accident.

                                    CONCLUSION

[¶15] The appellant’s claim for workers’ compensation benefits was denied on the basis
that the injury was not causally connected to a work-related accident. That decision was
supported by substantial evidence. Although the appellant claimed that he experienced
shoulder pain since the 1996 accident, the medical evidence indicated, at most, that the
injury occurred sometime before the diagnosis in 2009. The decision to deny benefits
was not made in an arbitrary and capricious manner despite the fact that the hearing
examiner did not make a stated determination of the credibility of the two witnesses, the
appellant and his wife. The record shows that the hearing examiner considered the
testimony of the witnesses. Because of the competing medical opinions and the long
time period between the accident and the detection of the injury, medical testimony was
necessary to prove causation. The hearing examiner properly weighed the competing
medical opinions as well as the testimony of the appellant and his wife. His decision was
not made in an arbitrary and capricious manner.

[¶16] We affirm.




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