Fernando Rodriguez v. State of Wyoming, ex rel. Department of Workforce Services, Workers' Compensation Division

                IN THE SUPREME COURT, STATE OF WYOMING

                                            

                                                                 OCTOBER TERM, A.D. 2022

                                                                          December 30, 2022


  FERNANDO RODRIGUEZ,

  Appellant
  (Petitioner),

  v.
                                                                     S-22-0131
  STATE OF WYOMING, ex rel.
  DEPARTMENT OF WORKFORCE
  SERVICES, WORKERS’
  COMPENSATION DIVISION,

  Appellee
  (Respondent).

                       Appeal from the District Court of Carbon County
                          The Honorable Tori R.A. Kricken, Judge

Representing Appellant:
      Herbert K. Doby, Torrington, Wyoming.

Representing Appellee:
      Bridget Hill, Wyoming Attorney General; Mark Klaassen, Deputy Attorney
      General; Peter Howard, Senior Assistant Attorney General; Holli J. Welch, Senior
      Assistant Attorney General.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, 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, Chief Justice.

[¶1] Fernando Rodriguez suffered a left wrist and right knee injury after falling from a
truck in a 2007 work accident. After years of treatment, he claimed his pain persisted and
spread throughout his body, leaving him unable to work. He applied for permanent total
disability benefits under the odd-lot doctrine in 2019, which the Department of Workforce
Services denied. After a contested case hearing, the Medical Commission upheld the
denial, finding Mr. Rodriguez did not meet his burden to prove a degree of obvious physical
impairment. The district court affirmed as do we.

                                          ISSUES

[¶2]   Mr. Rodriguez argues two issues on appeal which we rephrase:

              1. Was there substantial evidence to support the
                 Commission’s determination that Mr. Rodriguez failed to
                 show his degree of obvious physical impairment, coupled
                 with other facts, qualified him for odd-lot treatment?

              2. Were the Commission’s           credibility   determinations
                 arbitrary and capricious?

                                          FACTS

[¶3] Mr. Rodriguez injured his left wrist, left shoulder, and right knee after falling out of
a truck bed while employed at Gregory & Cook Construction in 2007. Mr. Rodriguez had
two wrist surgeries, but was released to light-duty work within a few days of his first
surgery, with lifting restrictions on his left wrist. Mr. Rodriguez did not return to work
despite his employer’s accommodations and was terminated weeks later.

[¶4] Mr. Rodriguez applied for temporary disability benefits and underwent two
impairment ratings for his injuries, which assigned him a two- to three-percent impairment
rating. He was awarded temporary partial disability and temporary total disability benefits
between November 2007 and April 2008 for injuries to his left wrist, left shoulder, and
right knee. The Medical Commission (Commission) determined his other complaints;
injuries to his head, neck, face, back, and heart, were unrelated to his workplace injury and
therefore not compensable.

[¶5] In the following months and years, Mr. Rodriguez continued to report pain
throughout his body. He has not worked since the accident and has not looked for work.
He has consistently seen Dr. Harlan Ribnik, a pain specialist, for pain management. Despite
extensive testing, no objective medical evidence of injury was found to support Mr.
Rodriguez’s complaints of pain.

                                             1
[¶6] In August of 2019, Mr. Rodriguez applied for permanent total disability (PTD)
benefits under the odd-lot doctrine. In his application, he reported he was unable to work
because standing, sitting, or walking caused him extensive pain and he could not lift, bend
over, or concentrate. Mr. Rodriguez is a fifty-three-year-old Mexican immigrant who lives
in Rawlins, Wyoming. He speaks limited English, has a sixth-grade education, and has
worked full-time in labor-intensive jobs since he was fifteen years old. Mr. Rodriguez
asserts, due to his injury and limited qualifications, he is unable to work in the Rawlins
community and thus qualified for odd-lot treatment.

[¶7] The Department of Workforce Services, Workers’ Compensation Division
(Division) denied Mr. Rodriguez’s PTD application. He requested a hearing before the
Medical Commission which upheld the denial. The Commission concluded Mr. Rodriguez
“failed to show by a preponderance of evidence that ‘the degree of obvious physical
impairment, coupled with other facts, such as mental capacity, education, training, or age’
qualify him for odd-lot treatment.” He appealed the ruling to the district court which also
affirmed the Commission’s denial. Mr. Rodriguez now appeals to this Court.

                               STANDARD OF REVIEW

[¶8] We review the appeal of an administrative action without deference to the district
court’s conclusions. Ross v. State ex rel. Dep’t of Workforce Servs., 

, 

, 27 (Wyo. 2022) (citing Mirich v. State ex rel. Bd. of Trs. of Laramie Cnty. Sch.
Dist. Two, 

, 

 (Wyo. 2021)). An agency action may be
set aside under certain circumstances:

              (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:
              ...
                      (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;



                                             2
                            (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.

(c) (LexisNexis 2021).

[¶9] A worker’s compensation claimant has the burden to prove all essential elements of
a claim by a preponderance of the evidence. Ross, 

, 503 P.3d at 28 (citing
Matter of Worker’s Comp. Claim of Vinson, 

, 

, 309 (Wyo.
2020)). When both parties submit evidence, we apply the substantial evidence test to
factual findings, which requires this Court to examine the entire record for “relevant
evidence which a reasonable mind might accept in support of the agency’s conclusions.”

 (quoting Camacho v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div.,

, 

, 843 (Wyo. 2019)). The agency may disregard certain
evidence if it explains its reasons for doing so based on credibility determinations. Boylen
v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 

, 

, 769 (Wyo. 2022) (citing Hood v. State ex rel. Dep’t of Workforce Servs.,
Workers’ Comp. Div., 

, 

 (Wyo. 2016)).

[¶10] This Court will not substitute the agency’s judgment with its own unless the
agency’s decision is “contrary to the overwhelming weight of the evidence on record.”
Watkins v. State ex rel. Wyo. Med. Comm’n, 

, 

 (Wyo.
2011). We also review an agency decision under the arbitrary and capricious standard to
catch “potential mistakes such as inconsistent or incomplete findings of fact[.]” In re
Pickens, 

, 

 (Wyo. 2006) (quoting Padilla v. State ex
rel. Wyo. Workers’ Safety & Comp. Div., 

, 

 (Wyo. 2004)).

[¶11] We review an agency’s conclusions of law de novo. Ross, 

, 

, 29 (citing Triplett v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 

, 

, 911 (Wyo. 2021)).

                                      DISCUSSION

[¶12] Mr. Rodriguez argues he is entitled to PTD benefits under the odd-lot doctrine. The
doctrine allows a claimant who is not totally incapacitated but is so handicapped he “will
not be employed regularly in any well[-]known branch of the labor market” to receive PTD
benefits. Ross, 

, 503 P.3d at 30 (quoting Schepanovich v. U.S. Steel
Corp., 

 (Wyo. 1983)). However, the claimant must demonstrate he is
incapacitated “from performing work at any gainful occupation for which [he] is

                                             3
reasonably suited by experience or training.” 

 The claimant must make a prima facie
showing: 1) he was disabled by a work-related injury and is now unable to work at his
previous job; and 2) “‘the degree of obvious physical impairment, coupled with other facts,
such as mental capacity, education, training, or age’ qualify him for odd[-]lot treatment.”
Pickens, 

, ¶ 14, 

 (quoting City of Casper v. Bowdish, 

 (Wyo. 1986)).

I.     Substantial evidence supported the Commission’s denial.

[¶13] It is undisputed Mr. Rodriguez was unable to return to his previous heavy-labor job
and therefore the first prong is met. The dispositive issue then, is whether substantial
evidence supported the Commission’s determination that Mr. Rodriguez was not eligible
for odd-lot treatment because he failed to show an ascertainable degree of obvious physical
impairment. To satisfy this prong, a claimant must show: 1) he has a degree of obvious
physical impairment; and 2) that degree of obvious physical impairment, coupled with
other factors, make him de facto unemployable. See Stallman v. State ex rel. Wyo. Workers’
Safety & Comp. Div., 

, 

 (Wyo. 2013).

A.     The Commission’s Factual Findings.

[¶14] After an extensive review of medical testimony, records, and reports, the
Commission concluded “that there is no objective evidence by which to determine the
‘degree of obvious physical impairment.’” We review the record as a whole for substantial
evidence to support that conclusion.

       1.     Three IMEs find two- to three-percent impairment rating.

[¶15] Mr. Rodriguez had three Independent Medical Evaluations (IMEs) that determined
his impairment rating was between two and three percent and he could return to the
workforce in some capacity.

       Dr. Kaplan

[¶16] Dr. Michael Kaplan conducted the first IME in April of 2008, approximately six
months after Mr. Rodriguez’s injury. He reviewed all of Mr. Rodriguez’s medical history
including his complaints of pain in his wrist, knee, neck, back, and shoulder, as well as
headaches and nosebleeds. Dr. Kaplan found no objective evidence to support his neck,
back, and shoulder pain, or his headaches and nosebleeds, and found little objective
evidence to substantiate he was unable to work in any capacity. He gave Mr. Rodriguez a
three-percent whole body impairment rating for the injuries sustained to his left wrist, left
shoulder, and right knee. Dr. Kaplan cleared Mr. Rodriguez to return to light or medium
work capacity.


                                             4
      Dr. MacGuire

[¶17] Dr. Anne MacGuire performed a second IME on June 2, 2008, where she found no
evidence of a right knee or left shoulder injury but assigned a two-percent whole body
impairment because of his left wrist injury. Dr. MacGuire also found significant symptom
magnification and exaggeration in Mr. Rodriguez’s pain evaluations. She released Mr.
Rodriguez to work without restriction.

      Dr. Shay

[¶18] Dr. Jed Shay performed a third IME on July 8, 2020, shortly after Mr. Rodriguez
applied for PTD benefits. He extensively reviewed Mr. Rodriguez’s medical history dating
back to the injury. Dr. Shay’s findings mirrored Dr. MacGuire’s and Dr. Kaplan’s; medical
evidence did not support a degree of physical impairment or Mr. Rodriguez’s complaints
of pain. Mr. Rodriguez also showed signs of symptom magnification in testing. Dr. Shay
released him to work without restriction. The Commission gave weight to Dr. Shay’s
medical opinion because he reviewed Mr. Rodriguez entire medical history, conducted a
physical examination, and his opinion was supported by Dr. Kaplan and Dr. MacGuire,
both of whom offered credible findings.

      2.       Five failed FCEs for lack of effort.

[¶19] Mr. Rodriguez was asked to perform five different Functional Capacity Evaluations
(FCEs), each of which was invalidated. The first two FCEs were invalidated due to
purposeful amplification of symptoms and a manipulated effort to influence the
evaluation’s results. The remaining FCEs were invalidated due to Mr. Rodriguez’s lack of
effort or his terminating the test prior to completion.

   Dr. Jeffres

[¶20] Mr. Rodriguez saw Dr. Mary Jo Jeffres, a clinical psychologist, on December 18,
2013. Dr. Jeffres conducted a Psychological Evaluation as part of Mr. Rodriguez’s
application for Social Security benefits. Mr. Rodriguez once again terminated the
evaluation early. Nevertheless, Dr. Jeffres diagnosed Mr. Rodriguez with a mild
neurocognitive disorder due to traumatic brain injury (TBI) without reviewing his medical
history or Mr. Rodriguez’s previous MRI. No other medical doctor supported the TBI
diagnosis and nothing in the record supports such a finding.

   Dr. Poyer

[¶21] Dr. Melinda Poyer, a family practice physician, examined Mr. Rodriguez on
December 18, 2013, to address pain complaints in his upper extremities, and neck, as well
as headaches. Dr. Poyer was able to review portions of Mr. Rodriguez’s medical history,

                                             5
including Dr. Ribnik’s records and records from an eye doctor and a physical therapist, but
she was not privy to records from Dr. Kaplan or Dr. MacGuire, nor the MRI of Mr.
Rodriguez’s brain. Dr. Poyer diagnosed injuries to the upper extremities, but these injuries
were previously determined unrelated to the workplace injury.

   Ms. Canada

[¶22] Ms. Charlene Canada is a certified rehabilitation counselor who conducted Mr.
Rodriguez’s vocational assessment on May 22, 2021. Her assessment concluded Mr.
Rodriguez was unable to work in the Rawlins area because of his TBI diagnosis and his
generalized pain, therefore making him eligible for odd-lot treatment. However, the
Commission’s conclusion rested on Mr. Rodriguez’s failure to prove a degree of obvious
physical impairment which made Ms. Canada’s testimony carry little weight because the
Commission did not reach the question whether Mr. Rodriguez was employable.

   Dr. Ribnik

[¶23] Dr. Ribnik, a pain specialist, has been Mr. Rodriguez’s primary doctor for the last
decade and has had recurring visits with Mr. Rodriguez to manage pain. Mr. Rodriguez
was insistent that Dr. Ribnik sign off on his PTD application, yet Dr. Ribnik repeatedly
refused until Mr. Rodriguez completed a valid FCE. Although Mr. Rodriguez never did
complete a valid FCE, Dr. Ribnik acquiesced in 2019 because he felt “bullied” into
certifying Mr. Rodriguez as permanently and totally disabled. Dr. Ribnik testified “It was
put under my nose. And basically, Mr. Rodriguez insisted that I sign it off. So I acceded to
his insistence.” When asked whether Dr. Ribnik believed Mr. Rodriguez was permanently
and totally disabled, Dr. Ribnik testified “I have to recant, to the extent that I think he could
do something. . . . I have no idea what he could do.” In sum, Dr. Ribnik testified he was
unsure of what Mr. Rodriguez’s physical impairment was, what he could do physically,
and the validity of his subjective complaints.

B. Substantial evidence supported the Commission finding Mr. Rodriguez did not
have a degree of obvious physical impairment.

[¶24] The Commission’s twenty-eight-page decision detailed the evidence presented,
findings of fact, conclusions of law, and ultimate determination. This Court must accept
the Commission’s decision if there is “relevant evidence which a reasonable mind might
accept in support of its conclusions.” Pickens, 

, ¶ 21, 

 (citing
Cramer v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 

, 

 (Wyo. 2005)). Even if evidence can be interpreted differently, under the
substantial evidence test this Court will not substitute its judgment for that of the
Commission. Id.



                                               6
[¶25] The Commission relied heavily on Dr. Shay who reinforced the positions of Dr.
Kaplan and Dr. MacGuire that little objective medical evidence showed Mr. Rodriguez had
a degree of obvious physical impairment caused by his work accident. It also relied on his
five invalid FCE results, two of which found he purposefully amplified symptoms, to
further support its conclusion Mr. Rodriguez’s subjective complaints lacked credibility.
Dr. Ribnik, his treating doctor, refused to certify Mr. Rodriguez’s PTD application on
several occasions but finally acquiesced because of consistent pressure from Mr.
Rodriguez, despite his physical condition being unchanged from the time Dr. Ribnik first
declined the certification. He also stated he was unsure of Mr. Rodriguez’s physical
limitations and whether Mr. Rodriguez’s complaints were legitimate. Multiple doctors
were unable to identify an injury and those that did were not offered the benefit of a
complete medical record review and had to rely on subjective patient complaints rather
than medical evidence. Based on this evidence, the Commission found that Mr. Rodriguez
failed to show a degree of obvious physical impairment. A reasonable mind could accept
this evidence to support the Commission’s conclusion; therefore, there was substantial
evidence to support the Commission’s findings.

[¶26] Mr. Rodriguez argues his three-percent impairment rating and his release to work
with limitations shows his degree of physical impairment. We disagree. Dr. Shay found in
2020 that Mr. Rodriguez had no physical impairment and could return to work, without
restriction. Dr. MacGuire also released Mr. Rodriguez to work without restriction. The
Commission determined his invalid FCEs and his impairment ratings showed an effort to
affect the results of his examinations, and concluded his pain complaints were less reliable
than objective medical findings. Because his accompanying medical records did not show
a degree of obvious physical impairment, the Commission correctly concluded Mr.
Rodriguez did not meet his burden to prove an objective medical injury.

[¶27] While Mr. Rodriguez was deemed unable to return to his previous employment, he
still carried a burden to prove his degree of obvious physical impairment. While
impairment ratings offer valuable evidence of what a patient can and cannot do, Mr.
Rodriguez cannot rely solely on his two-percent impairment rating, without work
restriction, to prove his degree of obvious physical impairment. Pickens, 

, 

 (holding it would be improper to grant PTD benefits to a claimant
based on the claimant’s impairment rating); see also Stallman, 

, 

 (holding a claimant proved her degree of physical impairment by admitting a valid
FCE, two impairment ratings, and medical records that support her claims of physical
impairment). He failed to prove his degree of physical impairment because he did not
present persuasive evidence of his degree of obvious physical impairment. He could not
present a valid FCE, and his medical records did not support his alleged injuries and pain.
Additionally, Mr. Rodriguez’s main complaints, his generalized pain, headaches, etc., are
injuries not causally related to his workplace accident, and he is barred from recovery for
those injuries under the odd-lot doctrine. Pickens, 

, 

.
There is not overwhelming evidence in the record to refute the Commission’s finding that

                                             7
Mr. Rodriguez failed to prove an ascertainable degree of physical impairment and therefore
the finding will not be disturbed. Because Mr. Rodriguez failed to meet his burden to
establish a degree of physical impairment, we need not consider whether his degree of
physical impairment, coupled with other facts, makes him de facto unemployable.

II.    The Commission’s credibility determinations were not arbitrary and capricious.

[¶28] The only remaining consideration is whether the Commission’s weight and
credibility decisions were arbitrary and capricious. We defer to an agency’s credibility
determinations if they are based on a rational premise. McMasters v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 

, 

 (Wyo. 2012). If “the
agency disregards certain evidence and explains its reasons for doing so based upon
determinations of credibility . . . its decision will be sustainable under the substantial
evidence test.” Boylen, 

, 506 P.3d at 769 (quoting Hood, 

, 

). The Commission had a rational premise to disregard Mr.
Rodriguez’s subjective complaints, Dr. Jeffres’ TBI diagnosis, and testimony from Dr.
Poyer and Ms. Canada.

[¶29] The Commission found Mr. Rodriguez was not a credible claimant because experts
found he consistently manipulated testing, exaggerated symptoms, and the Commission
witnessed behavior at hearings and on video inconsistent with his complaints. In
McMasters, the Court addressed a similar situation regarding the claimant’s credibility.

, 

. There, the claimant broke his back after falling while
working on an HVAC system and was unable to return to work in any capacity due to his
physical impairment and other factors. Id. at ¶¶ 1, 3, 

. The Commission
found Mr. McMasters’ testimony lacked credibility because he made minimal efforts to
return to work, provided inconsistent information to medical providers, and was observed
sitting without distress for almost an hour longer than he claimed he could sit without pain.
Id. at ¶ 72, 

. We rejected this conclusion because the record did not support
the Commission’s conclusions nor was its reasoning compelling, particularly because
medical reports never questioned the validity of his complaints, and he had an “objectively
verifiable physical injury” with pain “consistent with that injury.” Id. at ¶¶ 73-76, 

.

[¶30] We also rejected the Commission’s credibility determinations in Moss based on its
own assessment of Mr. Moss’ physical appearance at the hearing and his actions in a private
investigator’s video. Moss v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 

, 

, 9-10 (Wyo. 2010). We have previously cautioned the
Commission against making medical diagnoses for multiple reasons. See, e.g., McMasters,
at ¶ 77, 

; Moss, 

, ¶ 33, 

 (finding a video of the
claimant conducting certain tasks for short periods of time he previously claimed he was
unable to do was not sufficient to disregard his testimony and subjective complaints). The


                                              8
combination of reasons to discredit Mr. McMasters and Mr. Moss lacked a rational premise
but that is not the case here.

[¶31] Several doctors documented that Mr. Rodriguez exaggerated pain or amplified
symptoms; he failed several FCEs due to lack of effort and intentional manipulation; and
video evidence belied his claims he was unable to perform certain tasks. He also lacked a
verifiable physical injury to explain his complaints of pain. Therefore, unlike McMasters,
there was evidence to question his subjective complaints and his credibility.

[¶32] The Commission did note that Mr. Rodriguez repeatedly turned his head at hearings
and used both arms and he moved normally on video, counter to what he alleged he was
capable of. We have cautioned the Commission against making “impromptu medical
diagnoses and reminded [it] of its obligation to make its decision on the basis of the records
and testimony entered into evidence.” McMasters, 

, 

;
Moss, 

, ¶¶ 32-33, 

. However, although the Commission did
make improper impromptu diagnoses based on reported behavior at past hearings and
behavior on video, it did not solely rely on its own observations to make its credibility
determinations. It considered doctors’ reports questioning the validity of Mr. Rodriguez’s
subjective complaints, his invalid FCEs, and Dr. Ribnik’s testimony. There was evidence
presented that supported a finding Mr. Rodriguez lacked credibility and, although a portion
of the Commission’s reasoning was improper, ample evidence existed to support its
credibility determination.

[¶33] The Commission gave less weight to Dr. Poyer and Dr. Jeffres’ findings than the
other doctors and disregarded some of their opinions. The agency may “disregard an expert
opinion if . . . [it is] based upon an incomplete or inaccurate medical history provided by
the claimant.” Boylen, 

, 506 P.3d at 771. In this case, the Commission
made its determinations based on the lack of medical records available to the two doctors.
They were not afforded the opportunity to review Mr. Rodriguez’s entire medical history
and were therefore unable to provide comprehensive diagnoses. The two gave credence to
Mr. Rodriguez’s subjective complaints which only further undermined their credibility.

[¶34] Finally, because Ms. Canada was not a medical doctor, the Commission was entitled
to reject her testimony in determining whether Mr. Rodriguez met his burden of
establishing his degree of physical impairment. See id. at ¶ 8, 506 P.3d at 769. The
Commission’s credibility determinations were rooted in a rational premise and are not
arbitrary and capricious. Those without the ability to review all medical records were given
less weight in their testimony than doctors who fully reviewed Mr. Rodriguez’s medical
history.




                                              9
                                     CONCLUSION

[¶35] There was substantial evidence for the Commission to deny Mr. Rodriguez’s
application for PTD for lack of an obvious physical impairment. The Commission pointed
to specific facts to support its credibility determinations and did not act arbitrarily and
capriciously. The Commission’s decision is affirmed.




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