James D. Gray v. State of Wyoming, Ex Rel. Department of Workforce Services, Workers' Compensation Division

              IN THE SUPREME COURT, STATE OF WYOMING

                                        

                                                           OCTOBER TERM, A.D. 2023

                                                                   December 19, 2023

 JAMES D. GRAY,

 Appellant
 (Petitioner),

 v.
                                                            S-23-0111
 STATE OF WYOMING, ex rel.
 DEPARTMENT OF WORKFORCE
 SERVICES, WORKERS' COMPENSATION
 DIVISION,

 Appellee
 (Respondent).

                     Appeal from the District Court of Crook County
                      The Honorable James Michael Causey, Judge

Representing Appellant:
      Jason Johnson, Davis, Johnson & Kallal, LLC, Cheyenne, Wyoming.

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

Before FOX, C.J., 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.
BOOMGAARDEN, Justice.

[¶1] James Gray applied to the Wyoming Workers’ Safety and Compensation Division
(Division) for permanent total disability benefits (PTD benefits) after a work-related injury.
The Medical Commission concluded after a contested case hearing that Mr. Gray proved
his eligibility for PTD benefits through the odd lot doctrine, but it deferred an issue of law
regarding whether a physician’s certification is required for PTD benefits in odd lot cases.
The Division referred the legal issue to the Office of Administrative Hearings (OAH). The
hearing examiner determined PTD benefits could not be awarded in an odd lot case without
a physician’s certification and denied Mr. Gray’s claim. The district court affirmed. We
reverse.

                                           ISSUE

[¶2] The single issue before us is whether a physician’s certification is required to receive
PTD benefits through the odd lot doctrine.

                                          FACTS

[¶3] In November 2018, a one-hundred-pound metal baffle fell off of a pile of lumber
and onto Mr. Gray during the course of his employment. The accident injured Mr. Gray’s
cervical spine, collarbone, right shoulder, left leg, and left ankle. He also lost some teeth
as a result of the accident. Mr. Gray reported the workplace injury to the Division. The
Division determined the injuries to Mr. Gray’s cervical spine, shoulder, leg, and ankle were
compensable. Mr. Gray received temporary total disability benefits for at least fifteen
months. In late January 2020, one of Mr. Gray’s medical providers opined that he reached
his maximum medical improvement but declined to opine on his permanent impairment,
recommending instead a functional capacity evaluation.

[¶4] In August 2020, Mr. Gray applied for PTD benefits. The Division denied the
application, noting the absence of a physician’s certification of the permanent total
disability. Mr. Gray objected to the Division’s decision, and the matter was referred to the
Medical Commission. A functional capacity evaluation and vocational assessment
followed, prior to the Medical Commission’s hearing. The vocational evaluator
determined Mr. Gray is unemployable in any occupation due to a myriad of medical
limitations associated with the workplace injuries, coupled with vocational limitations
related to Mr. Gray’s skills, education, and training.

[¶5] The Medical Commission held a contested case hearing in October 2021. Mr. Gray
asserted his claim should be viewed under the odd lot doctrine and that no physician’s
certification is required for PTD benefits through that doctrine. The Medical Commission
found Mr. Gray met his burden to establish his eligibility for PTD benefits under the odd
lot doctrine. However, the Medical Commission concluded it did not have jurisdiction to


                                              1
determine as a matter of law whether a physician’s certification is required to receive
benefits under that doctrine. The Medical Commission referred the matter back to the
Division for resolution of that legal question. The Division then referred the matter to the
OAH.

[¶6] Mr. Gray and the Division agreed there were no disputed issues of material fact and
the only issue was one of law regarding the physician’s certification. They both moved the
OAH for summary judgment to resolve that question. A hearing examiner heard arguments
on the motions in March 2022. The hearing examiner decided in favor of the Division,
holding that a physician’s certification is required to receive PTD benefits through the odd
lot doctrine. Mr. Gray appealed that decision to the district court. The district court
affirmed the hearing examiner’s decision. This appeal timely follows.

                               STANDARD OF REVIEW

[¶7] We examine this matter as if it came directly from the agency and give no deference
to the district court’s decision. Bressler v. State ex rel. Dep’t of Workforce Servs., 

, 

, 227–28 (Wyo. 2023) (citing Genner v. State ex rel. Dep’t of
Workforce Servs., 

, 

, 1142 (Wyo. 2022)). Our review is
governed by the Wyoming Administrative Procedure Act which, in pertinent part, requires
us to set aside agency actions that are “not in accordance with law” or are “[u]nsupported
by substantial evidence in a case reviewed on the record of an agency hearing provided by
statute.” 

(c) (A), (E) (2023). The substantial evidence standard
of review applies to evidentiary findings after contested case proceedings, but we review
conclusions of law de novo. Bressler, 

, 

 (citation
omitted); 

(c) (“[T]he 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.”).

[¶8] This appeal arose from a contested case proceeding, but the parties do not dispute
the evidentiary finding that Mr. Gray meets the criteria for PTD benefits under the odd lot
doctrine. Without a challenge to the substantial evidence supporting the Medical
Commission’s conclusion, the sole issue for our review is the Division’s conclusion of law.
“Absent evidentiary dispute, the standard of review for contested case hearings is simply
stated as whether an agency’s conclusions are in accordance with the law.” Jacobs v. State
ex rel. Wyo. Workers’ Safety & Comp. Div., 

, 

(Wyo. 2009) (citation omitted). Under this standard of review, we afford no deference to
the agency’s determination and will correct any error made by the agency in either
interpreting or applying the law. 

 (citation omitted).




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                                      DISCUSSION

[¶9] This appeal asks us to evaluate the relationship between the common law odd lot
doctrine and the statutory framework for PTD benefits. To receive PTD benefits through
the statutory framework, a claimant must meet the definition of permanent total disability.

(a)(xvi) defines “permanent total disability” as:

              the loss of use of the body as a whole or any permanent injury
              certified under W.S. 27-14-406, which permanently
              incapacitates the employee from performing work at any
              gainful occupation for which he is reasonably suited by
              experience or training[.]

(a) provides, in pertinent part:

              Subject to W.S. 27-14-602, upon certification by a physician
              licensed to practice surgery or medicine that an injury results
              in permanent total disability as defined under W.S. 27-14-
              102(a)(xvi), an injured employee shall receive for eighty (80)
              months a monthly payment as provided by W.S. 27-14-
              403(c)[.]

The Division, the hearing examiner, and the district court narrowly construed this statutory
framework for PTD benefits. What the Division, hearing examiner, and district court
overlooked, however, is that the longstanding common law odd lot doctrine affords a
particularized statutory application in certain cases.

[¶10] The odd lot doctrine is a common law vehicle whereby a worker can obtain statutory
PTD benefits when they are “not actually permanently totally disabled.” Moss v. State ex
rel. Wyo. Workers’ Comp. Div., 

, 

 (Wyo. 2010) (citation
omitted); see Stallman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 

, 

 (Wyo. 2013) (referring to the “common law odd lot doctrine”). We
first recognized the odd lot doctrine as part of our substantive workers’ compensation law
in 1941. Anaya v. Holly Sugar Corp., 

 (Wyo. 1996) (citing the history
of cases developing the odd lot doctrine); In re Pickens, 

, 

 (Wyo. 2006) (discussing In re Iles, 

 (Wyo. 1941)). In later decades, we
defined the doctrine in more detail and with reference to its development in other
jurisdictions. Anaya, 

; Pickens, 

, 

; Cardin v.
Morrison-Knudsen, 

, 863–64 (Wyo. 1979) (citations omitted); Schepanovich
v. U.S. Steel Corp., 

, 525–26 (Wyo. 1983). Under the odd lot doctrine, a
claimant—who is not permanently totally disabled such that they are altogether
incapacitated—is nevertheless able to receive permanent total disability benefits because
the claimant’s disability and other factors make the claimant de facto unemployable. Id.


                                             3
(citations omitted); Pickens, 

, 

; Vaughan v. State ex rel.
Wyo. Workers’ Comp. Div., 

, ¶¶ 8–11, 

, 561–63 (Wyo. 2002).
Specifically, the claimant must show (1) they are no longer capable of performing the job
held at the time of the injury and (2) the degree of physical impairment coupled with other
factors such as mental capacity, education, training, and age make the claimant eligible for
PTD benefits even though they are not totally incapacitated. Ross v. State ex rel. Dep’t of
Workforce Servs., 

, 

, 31 (Wyo. 2022) (citation omitted). The
claimant must also show reasonable efforts to find work in their community after reaching
maximum medical improvement or, alternatively, show that the disability caused by the
work-related injury is so complete that any effort to find employment would be futile.
Moss, 

, ¶ 14, 

 (citation omitted). The burden then shifts to the
Division or the employer to show that light work of a special nature the claimant could
perform is available. Pickens, 

, 

 (citation omitted).

[¶11] The odd lot doctrine is a particular, case-specific “application of the definition of
permanent total disability,” Pickens, 

, 

, and we will
continue to apply it as such. See also Moss, 

, ¶ 13, 

 (“[T]he
statutory definition for permanent total disability is consistent with the odd lot doctrine[.]”
(citing Nagle v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 

, 

 (Wyo. 2008))). As the Division notes in its briefing, we must construe
Wyoming statutes in a manner that does not abrogate common law unless the legislature
has expressly or impliedly indicated to the contrary. Merrill v. Jansma, 

, 

, 285–86 (Wyo. 2004) (“Absent a manifestation of legislative intent to
repeal a common-law rule, statutes should be construed as consistent with the common
law. Statutes are not to be understood as effecting any change in the common law beyond
that which is clearly indicated either by express terms or by necessary implication from the
language used.” (citations omitted)). The legislature has not abrogated the odd lot doctrine.

[¶12] The physician’s certification clause was added to 

-
102(a)(xvi) and § 27-14-406(a) in 1994 in a set of comprehensive revisions to the workers’
compensation statutes. 1994 Wyo. Sess. Laws ch. 86. In making those revisions, the
legislature expressly abrogated common law requiring us to liberally construe workers’
compensation statutes, id.; In re Collicott, 

, 

, 1081–82
(Wyo. 2001) (discussing the 1994 amendments and express rejections of certain common
law), but made no mention of the longstanding odd lot doctrine. Nor, for the reasons
explained below, is it necessary to imply any abrogation of that doctrine to give full effect
to 

(a)(xvi) and § 27-14-406(a) as the legislature intended.

[¶13] The Act provides for disabilities and impairments. A “disability” is evaluated in
terms of the economic loss and earning capacity associated with an injury. An
“impairment,” on the other hand, concerns physical loss and presents as a medical question.
State ex rel. Wyo. Workers’ Safety & Comp. Div. v. Singer, 

, 

, 1159–60 (Wyo. 2011) (citations omitted). Several factors the claimant must address


                                              4
under the odd lot doctrine are independent of the claimant’s physical, or medical,
limitations. Stallman, 

, 

; 3 Modern Workers Compensation
§ 305:9 (Nov. 2023 Update). Indeed, as Mr. Gray’s counsel emphasized at the summary
judgment hearing, those non-physical factors often are beyond the scope of a physician’s
certification. Mr. Gray’s medical providers stated the same in their depositions. They
could not opine on Mr. Gray’s vocational capacity and limited their opinions to Mr. Gray’s
physical limitations.

[¶14] Accordingly, in Stallman, we held extensive reliance on physician testimony was
“an error in the application of the law governing the odd lot doctrine, which requires
consideration of both a claimant’s degree of physical impairment and whether the claimant
can be ‘employed regularly in any well known branch of the labor market.’” 

, 

 (emphasis in original). In Vaughan, we similarly questioned the ability
of a medical examiner to opine in all cases on vocational ability, particularly when that
medical examiner agrees that “whether someone can perform a job requires consideration
of more than just the physical condition of the person, [the physician’s] specialty, but also
the job market and availability, as well as mental abilities, education, training and
experience” which are “best left for a vocational evaluator to determine.” 

,
¶¶ 25–29, 53 P.3d at 565–66.

[¶15] To summarize, a “disability” determination is not, in all cases, solely a medical
question capable of certification. See Stallman, 

, 

;
Vaughan, 

, ¶¶ 25–29, 53 P.3d at 565–66; Singer, 

, 248
P.3d at 1159–60. In instances like Mr. Gray’s, a physician may be able to provide medical
evidence of physical impairment but could not certify him as permanently totally disabled
as defined in 

(a)(xvi) because whether he is permanently
disabled involves more than just medical evidence. It requires an evaluation of the
economic loss or earning capacity resulting from that impairment—an evaluation the
physician may not be qualified to perform. Vaughan, 

, ¶¶ 25–29, 53 P.3d at
565–66. The odd lot doctrine operates to determine PTD benefit eligibility in just such
circumstances—cases where a claimant cannot meet the statutory definition of permanent
total disability because of their physical impairment alone, but whose impairment coupled
with vocational factors and the type of work available in a community renders that claimant
unable work at any gainful occupation for which they are reasonably suited by experience
and training. Moss, 

, ¶ 13, 

; Pickens, 

, 134
P.3d at 1235–36 (citations omitted).

[¶16] This result—not conditioning an award of statutory PTD benefits in all cases to the
submission of a physician’s certification under 

(a)—comports
with the statutory structure used by the legislature when it defined permanent total
disability. See Gates v. Memorial Hosp. of Converse Cnty., 

, 

 (Wyo. 2023) (discussing plain language interpretation and our obligation to
“construe each statutory provision in pari materia, giving effect to every word, clause, and


                                             5
sentence according to their arrangement and connection.” (citations omitted)). 

(a)(xvi) certainly contemplates certification of the loss of use of the body
as a whole or any permanent, physical injury. Notably, however, the second clause of
section 102(a)(xvi)—“which permanently incapacitates the employee from performing
work at any gainful occupation for which he is reasonably suited by experience or
training”—expressly ties the physical injury to the vocational criteria for permanent total
disability. See Pickens, 

, ¶¶ 16–17, 31, 

 (discussing
the causal connection required for PTD benefits between the workplace injury and the
inability to work). The common law odd lot doctrine simply recognizes that in certain
cases the vocational criteria to establish a permanent total disability necessarily connect to
nonphysical or nonmedical circumstances, which, when considered together with the
physical injury, render the claimant unemployable and thus eligible for statutory PTD
benefits. This is the factual reality addressed by the odd lot doctrine.

[¶17] “We presume the legislature to adopt legislation which is reasonable and logical.”
Balderson v. State, 

, ¶ 23, 

 (Wyo. 2013) (citing Vineyard
v. Jenkins, 

 (Wyo. 1999)); Gates, 

, 

(“[A] court should give effect to the most likely, most reasonable, interpretation of the
statute, given its design and purpose.” (citation omitted)). The specialized application of
the statutory definition of permanent total disability afforded by the odd lot doctrine
harmonizes (1) the need for medical expertise about the physical limitations and connection
to the workplace injury, and (2) the practical limitations for medical providers to opine
outside their areas of expertise on vocational and community criteria for “disability” under
the workers’ compensation statutes, supra ¶¶ 13–15. It also furthers the legislature’s intent
that workers’ compensation claims be decided on their merits, see 

-
14-101(b), because a decision on the merits could be impaired if all claims were contingent
on physicians having to certify non-medical, vocational matters outside their area of
expertise. Finally, this application aligns with the legislative directive not to favor either
party when interpreting the Act. See 

 The burden of proof in odd lot cases remains on
the claimant and, as our precedent reflects, even with a physician’s certification, proving a
claimant qualifies for PTD benefits through the odd lot doctrine is fact intensive. E.g.,
Moss, 

, 

; Pickens, 

, 

; Vaughan, 

, 

.

                                      CONCLUSION

[¶18] It is uncontested that Mr. Gray met his evidentiary burden to prove his eligibility
for PTD benefits under the odd lot doctrine. A physician’s certification of non-medical
matters is not a prerequisite to award PTD benefits through the common law odd lot
doctrine. We reverse the decision of the district court and the hearing examiner and remand
this matter for entry of an order consistent with this opinion.




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