                IN THE SUPREME COURT, STATE OF WYOMING

                                    2015 WY 20

                                                     OCTOBER TERM, A.D. 2014

                                                            February 10, 2015

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

VERNON BAILEY,

Appellant
(Petitioner),

v.                                             S-14-0109

STATE OF WYOMING, ex rel.,
DEPARTMENT OF WORKFORCE
SERVICES, WORKERS' SAFETY AND
COMPENSATION DIVISION,

Appellee
(Respondent).

                  Appeal from the District Court of Fremont County
                      The Honorable Marvin L. Tyler, Judge

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

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney
      General; Michael J. Finn, Senior Assistant Attorney General; and Quinn J. Lance,
      Student Intern.

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

[¶1] Vernon Bailey challenges a Medical Commission order denying him further
benefits for a cervical spine injury. Mr. Bailey argues on appeal that the Medical
Commission’s findings and conclusions were not supported by substantial evidence. We
will affirm.

                                              ISSUE

[¶2]   Mr. Bailey phrases the single issue as follows:

               Did the Medical Commission err in finding that [Bailey] had
               not met his burden of proof that he was entitled to further
               cervical Workers’ Compensation benefits as a result of his
               work related injury on February 7, 2011?

                                              FACTS

[¶3] On February 7, 2011 Vernon Bailey slipped and fell during his shift as a custodial
supervisor at the Holiday Inn in Riverton. He injured his knees, right wrist, head, neck,
and back. 1 Immediately after his injuries, he was transported to Riverton Hospital where
he underwent a number of procedures, including a CT scan on his cervical spine. Three
days later Mr. Bailey sought the care of Dr. Robert Narotzky, a neurosurgeon, who
recommended steroid injections but not surgery.

[¶4] On March 4, 2011 the Wyoming Workers’ Compensation Division (Division)
awarded benefits to Mr. Bailey. Dr. Narotzky referred Mr. Bailey to Dr. Todd
Hammond, an anesthesiologist, who administered a steroid injection. Dr. Hammond
gave Mr. Bailey a pain log and recommended that he follow up with Dr. Thomas
Kopitnik, another neurosurgeon, if his symptoms did not improve. Dr. Narotzky
recommended, and Mr. Bailey underwent, an MRI of his cervical spine, which showed
minimal to mild foraminal narrowing in C3-4, C4-5, and C5-6.

[¶5] Six weeks after his MRI Mr. Bailey received a CT C-spine post-myelogram. The
CT scan showed “[m]ultilevel degenerative changes of the cervical spine.” After
reviewing Mr. Bailey’s scans Dr. Kopitnik recommended that Mr. Bailey “undergo a C5-
6 and C6-7 anterior cervical discectomy and fusion because of neck pain.” Dr. Kopitnik
submitted a request to the Division for preauthorization for the recommended discectomy


1
   The record indicates that Mr. Bailey’s wife prepared the initial injury report. The report was
completely typed except for a notation that added the word “neck” to the list of injuries. The Medical
Commission noted that the word “neck” seemed to have been added to the report after the fact.


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and fusion. However, the Division denied the request, to which Mr. Bailey objected. Mr.
Bailey requested a hearing, which was referred to the Medical Commission.

[¶6] Before the Medical Commission hearing Dr. Kopitnik submitted to a deposition.
He testified that Mr. Bailey previously reported back pain to Dr. Narotzky in 2009, a full
year and a half before his work fall. Dr. Kopitnik testified that, in his opinion, Mr.
Bailey’s work fall did not cause his cervical spine injury. This was contrary to his earlier
statement that he expressed when he submitted the preauthorization request for Mr.
Bailey’s surgery in 2011. Dr. Kopitnik stated, “[Mr. Bailey] had a myelogram of his
neck February 16, 2010. And this new myelogram, April 18, 2011, to me, does not look
that different.”

[¶7] In March of 2012 Mr. Bailey was referred to yet another doctor, Dr. Eric Schubert,
a neurologist, who reviewed the MRI and CT scan of Mr. Bailey’s cervical spine. Dr.
Schubert reported that the MRI showed “moderate degenerative disk disease at C4-5, C5-
6, and C6-7.” Dr. Schubert recommended surgery to alleviate Mr. Bailey’s pain. Dr.
Schubert was also deposed in preparation for the Medical Commission hearing and again
testified that he recommended a three-level discectomy and fusion for Mr. Bailey.
However, when asked if the 2011 workplace fall caused the need for recommended
surgery, Dr. Schubert responded “that would be conjecture on my part.” Dr. Schubert
also admitted that Mr. Bailey’s medical records reflected a recommendation of neck
surgery prior to his fall in 2011.

[¶8] Along with the testimony of Drs. Kopitnik and Schubert, Dr. John F. Ritterbusch,
an orthopedic surgeon, conducted an independent medical examination. After examining
Mr. Bailey and his medical records Dr. Ritterbusch found no evidence of acute injury
after the accident of February 7, 2011 on the CT scans, x-rays, and myelogram. Dr.
Ritterbusch said it was his opinion that the documentation failed to establish an acute
injury or an aggravation or exacerbation to the cervical spine after the accident. The
doctor also stated that “[i]t is a mystery to me after reviewing this chart why this surgical
procedure was ever considered.”

[¶9] After the hearing the Medical Commission upheld the Division’s denial of benefits
for Bailey’s cervical spine issues. In its findings of fact the Medical Commission relied
upon Dr. Kopitnik’s testimony and discounted Dr. Schubert’s testimony. In response,
Mr. Bailey filed a Petition for Review of Administrative Action in district court. The
district court affirmed the Medical Commission and this appeal followed.

                               STANDARD OF REVIEW

[¶10] When considering an appeal from a district court’s review of an administrative
agency’s decision, we treat the case as if it had come directly from the administrative
agency, without giving any deference to the district court’s decision. Kenyon v. State ex


                                              2
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 governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2013):

                     (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
                                    (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, ¶ 21, 188 P.3d at 561. Substantial evidence means “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Bush v. State ex rel. Workers’ Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d
176, 179 (Wyo. 2005) (citation omitted). “‘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.’” Kenyon, ¶ 11, 247 P.3d at 849, quoting Bush, ¶ 5, 120 P.3d at 179.

[¶11] Regarding an agency determination that the employee/claimant did not satisfy his
burden of proof, we have stated:

             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


                                              3
              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.

Dale, ¶ 22, 188 P.3d at 561 (citations omitted).

[¶12] 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.” Kenyon, ¶ 13, 247 P.3d at
849, quoting Moss v. State, 2010 WY 66, ¶ 11, 232 P.3d 1, 4 (Wyo. 2010). See also,
Dale, ¶ 26, 188 P.3d at 561-62.

                                      DISCUSSION

[¶13] Mr. Bailey argues on appeal that the Medical Commission’s findings and
conclusions were not supported by substantial evidence. Mr. Bailey contends that the
Medical Commission erred when it gave greater weight to one expert over another.
Based upon our review of the record, we conclude that the Medical Commission’s
decision was supported by substantial evidence.

[¶14] Wyo. Stat. Ann. § 27-14-102(a)(xi) (F) and (G) (LexisNexis 2013) defines the
term “injury” in relevant part as:

              [A]ny harmful change in the human organism other than
              normal aging . . . arising out of and in the course of
              employment while at work in or about the premises occupied,
              used or controlled by the employer and incurred while at work
              in places where the employer’s business requires an
              employee’s presence and which subjects the employee to
              extrahazardous duties incident to the business. “Injury” does
              not include:

              ....

                    (F) Any injury or condition preexisting at the time of
              employment with the employer against whom a claim is made;


                                              4
                    (G) Any injury resulting primarily from the natural
             aging process or from the normal activities of day-to-day
             living, as established by medical evidence supported by
             objective findings[.]

[¶15] In applying this provision, we have said that an employer takes an employee as he
finds him, and an employee who has a preexisting condition may still recover if his
employment substantially or materially aggravated the condition. Lindbloom v. Teton
Int’l, 684 P.2d 1388, 1389 (Wyo. 1984). Furthermore, a “preexisting disease or infirmity
of the employee does not disqualify a claim under the ‘arising out of employment’
requirement if the employment aggravated, accelerated, or combined with the disease or
infirmity to produce the death or disability for which compensation is sought.” Dutcher
v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 WY 10, ¶ 14, 223 P.3d 559,
562 (Wyo. 2010) (quoting Lindbloom, 684 P.2d at 1389; State ex rel. Wyo. Workers’
Safety & Comp. Div. v. Faulkner, 2007 WY 31, ¶ 11, 152 P.3d 394, 397 (Wyo. 2007));
State ex rel. Wyo. Workers’ Comp. Div. v. Fisher (In re Fisher), 914 P.2d 1224, 1227
(Wyo. 1996).

[¶16] For a claimant to recover under the theory of material aggravation he must
establish by a preponderance of the evidence his work “contributed to a material degree
to the aggravation of the preexisting condition.” Boyce v. State ex rel. Wyo. Workers’
Safety & Comp. Div., 2005 WY 9, ¶ 11, 105 P.3d 451, 455 (Wyo. 2005). We further
explained the proof required to show a work-related aggravation of a preexisting
condition:

             [O]ur case law requiring a claimant to show his or her
             employment “materially or substantially aggravated” the
             preexisting injury does not require expert medical testimony
             specifically using the words “substantial or material.” Rather,
             what our cases require is that the claimant show that work
             activities, rather than the natural progression of the condition,
             factors associated with ordinary daily living or some other
             non-work related factor, significantly aggravated the
             preexisting condition. The nexus between work activities and
             the aggravation ordinarily will be shown through expert
             opinion testimony.        That is, expert medical testimony
             ordinarily will be required to establish the link between the
             worsening of the medical condition and the claimant’s work
             activities, rather than some other factor. The materiality of
             the nexus ordinarily will be shown through evidence of the
             facts and circumstances surrounding the employment. Stated
             simply, the claimant is required to prove by a preponderance


                                             5
             of all of the evidence that the work activities were a
             significant factor in the worsening of the preexisting
             condition.

Boyce, ¶ 16, 105 P.3d at 456. This Court has explained that “there are no ‘magic’ words
which must be uttered by the medical expert in order to justify a finding that the claimant
suffered a material aggravation of a pre-existing condition.” State ex rel. Wyo. Workers’
Safety v. Slaymaker, 2007 WY, ¶ 18, 156 P.3d 977 at 984 (Wyo. 2007). However, the
Medical Commission can disregard a medical expert’s testimony if they find it
“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. Med. Comm’n, 2011 WY 49, ¶ 25, 250 P.3d 1082, 1091
(Wyo. 2011) (quoting Taylor v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2005
WY 148, ¶ 15, 123 P.3d 143, 148 (Wyo. 2005)).

[¶17] In this case, the Medical Commission considered the opinion of three experts – Dr.
Kopitnik, Dr. Schubert, and an independent medical examination conducted by Dr.
Ritterbusch. While the parties disagreed as to whether Mr. Bailey’s neck injury was
preexisting, the Commission concluded that “Mr. Bailey suffered from preexisting
cervical pathology prior to the work injury of February 7, 2011.” However, the
Commission used the experts’ testimony to ultimately conclude that the work-related
injury on February 7, 2011 did not materially aggravate the preexisting condition. The
Commission stated:

                    In this matter, we have that benefit of studies done
             before and after the 2011 fall, and those studies indicate that
             there were no differences in pathology in the cervical spine,
             indicating quite clearly that Mr. Bailey did not suffer an acute
             injury to his cervical spine at the time of the fall in February,
             2011. We find that the pathology in his spine is due to general
             aging and overall wear and tear and his ongoing degenerative
             condition, and we find that his preexisting cervical spine
             pathology was NOT aggravated by the fall, and he clearly
             returned to baseline. We also note that Mr. Bailey did NOT
             claim that his cervical pathology was a condition that had
             occurred over a substantial period of time, as contemplated by
             Wyoming Statute 27-14-603(a) but claimed the cervical injury
             was due to the single specific incident on February 7, 2011,
             when he fell on the ice.

[¶18] During the hearing, Dr. Kopitnik testified as follows:




                                             6
                    A. … So, to answer your question, he had a
             myelogram of his neck February 16th of 2010. And this new
             myelogram, April 18th, 2011, to me, does not look that
             different. But it’s not the highest quality because of his size.
             It’s hard to get imaging on him, because he is 5-10 and 274
             pounds, and he’s a very large upper trunk. So it’s very hard to
             get images on him. But I don’t see that it looks appreciably
             different April 18th to February 16th of 2010.
                    ....
                    Q. It does not appear that whatever happened to him in
             February when he slipped at work has caused his cervical
             condition?
                    A. I would agree with that. I don’t think there’s any
             evidence of that. I agree with that.
                    ....
                    [Mr. Bailey] does have, based on his x-ray reports both
             on February of ’10 and April of ’11, large disk bone spurs at
             C5-6 and C6-7. And I’ll – I can read - although I interpret
             these myself, I can read the April CT myelogram. It states that
             he had a central disk osteophyte complex effacing the ventral
             thecal sac, contacting the ventral aspect of the spinal cord
             which is being flattened. The same thing at C6-7. Effaces the
             ventral thecal sac.
                    So although there’s no stenosis, he has bony spurs
             pushed into his spinal cord at C5-6 and C6-7. And it would be
             in his best interest because of pain in his neck to have those
             bone spurs removed.
                    Q. What causes the bony spurs, Doctor?
                    A. I don’t have any idea, and I don’t think anyone can
             say definitively. It is theorized in some patients they are the
             residual of disk ruptures that have not resolved and they have
             gone on to calcification.
                    Q. Something that happens over a relatively long
             period of time, then?
                    A. Yes, sir. Recently long, relatively. Months to
             years, yes sir.

[¶19] About Dr. Kopitnik’s testimony, the Medical Commission said, “[t]he most
persuasive opinion in this matter is that put forth by Dr. Kopitnik, who actually requested
preapproval from the Division of the cervical procedure, but indicated upon questioning
that Mr. Bailey’s pre and post February 7, 2011 condition was not ‘appreciably
different.’” The credibility of Dr. Kopitnik’s testimony was bolstered by Dr. Ritterbusch,



                                             7
who said it was his opinion that the documentation failed to establish an acute injury or
an aggravation or exacerbation to the cervical spine after the accident.

[¶20] Mr. Bailey argues that the testimony by Dr. Kopitnik and Dr. Ritterbusch, along
with the rest of the record, does not amount to substantial evidence enough to support the
Medical Commission’s decision. Instead, Mr. Bailey relies entirely upon the testimony
of Dr. Schubert and encourages this Court to do so as well. Mr. Bailey contends that
through Dr. Schubert’s testimony he satisfied the burden of proof required to show that
he materially aggravated his condition. Mr. Bailey’s argument is not consistent with our
standard of review. As we stated earlier, in reviewing an agency’s determination that the
burdened party failed to meet his burden of proof, we decide whether there is substantial
evidence to support the agency’s decision to reject the evidence offered by the burdened
party. In cases like this one, we consider whether the agency’s rejection of the claimant’s
evidence was contrary to the overwhelming weight of the evidence in the record as a
whole. Mr. Bailey only relies upon the portions of Dr. Schubert’s testimony that support
his claim. In actuality, when asked the cause of Mr. Bailey’s need for surgery, Dr.
Schubert stated, “[i]t would be conjecture on my part.” Importantly, Dr. Schubert also
responded that it “would be conjecture” on his part when specifically asked if the
February 7, 2011 workplace fall caused his need for surgery. Dr. Schubert testified as
follows:

             I think it’s possible that Mr. Bailey had aggravation of a
             preexisting condition which became symptomatic once he had
             his fall.
             ....
             I think the fall is what is likely causing his current symptoms
             that surgery is a consideration for elective surgery to treat his
             symptoms which haven’t responded well to other therapies.”

However, when Dr. Schubert was pressed about stating his opinion to a reasonable
degree of medical probability, he stated for a third time: “… that would be conjecture on
my part.” Dr. Schubert also testified that he based his opinion on Mr. Bailey’s assertions
that he did not have any cervical spine symptoms before his workplace fall in 2011.
However, the record clearly indicates that Mr. Bailey’s cervical spine problems began
prior to the accident.

[¶21] The Medical Commission summarized Dr. Schubert’s testimony as follows:

             Dr. Schubert indicated that the fall may have aggravated the
             preexisting condition in his cervical spine, but we find that
             Dr. Schubert was equivocal in his opinion, and confirmed that
             his opinion was based largely on the subjective reporting of



                                             8
              Mr. Bailey, and any opinion on that issue by Dr. Schubert
              would be speculative.

The Medical Commission based its credibility determinations on the record and
explained its reason as to why it accepted Dr. Kopitnik’s testimony and rejected Dr.
Schubert’s testimony. 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. Along with Dr. Kopitnik’s testimony, the
medical records and independent medical examination supported the Medical
Commission’s decision to deny Mr. Bailey benefits for his cervical spine injury.

[¶22] Under these circumstances, we cannot say that the Medical Commission was
wrong to discount the medical opinions proffered by Dr. Schubert. The Medical
Commission’s rejection of Mr. Bailey’s evidence and its determination that Mr. Bailey
failed to meet his burden of proving his preexisting cervical spine injury was materially
aggravated by his fall at work on February 7, 2011 was not contrary to the great weight of
the evidence. Consequently, substantial evidence existed to support the Medical
Commission’s decision.

                                     CONCLUSION

[¶23] We affirm the district court’s order affirming the Medical Commission’s order
denying Vernon Bailey further benefits for his cervical spine injury.




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