DAVIS, Justice.
[¶ 1] Appellant Christina Hirsch sought worker's compensation benefits for back pain she believed was related to an earlier workplace accident. The Office of Administrative Hearings (OAH) upheld the Wyoming Workers' Safety and Compensation Division's (Division) denial of temporary total disability and medical pay benefits, and the district court affirmed the OAH decision. Ms. Hirsch appeals to this Court, claiming that the OAH erred by failing to find a causal
[¶ 2] While Ms. Hirsch raises several issues on appeal, we find the dispositive question to be whether there is substantial evidence to support the OAH's denial of benefits before a remand from the district court for supplementation of the record. We therefore restate the controlling issue as follows:
[¶ 3] In 2003, Ms. Hirsch slipped while working for Taco Bell in Gillette, Wyoming. She felt immediate back pain and soon had numbness in her left leg, as well as urinary incontinence. As a result, an emergency laminotomy and discectomy were performed at the L5-S1 levels of Ms. Hirsch's lumbar spine on November 6, 2003. The initial surgery alleviated her symptoms somewhat, but pain and incontinence returned soon thereafter, necessitating a follow-up procedure on March 26, 2004. After her second surgery, Ms. Hirsch was pain-free and had no problems with bladder control.
[¶ 4] In August of 2004, Ms. Hirsch again fell at work and strained her back. Although she experienced lower back pain, she had neither numbness nor loss of bladder control. A Wyoming worker's compensation claim was opened and benefits were awarded. Ms. Hirsch participated in physical therapy throughout the remainder of 2004.
[¶ 5] Things were going well until she slipped and fell again while leaving work on December 20, 2004. According to a physician's note reflecting a visit two days later, Ms. Hirsch had pain in her back and tailbone region with numbness in her right leg. She reported that she still had occasional episodes of incontinence, which, according to the treating doctor, "stem back to her original large disc herniation and presumed cauda equina syndrome." A radiologist's report concerning an MRI conducted on December 27, 2004, found no evidence of recurrent disc herniation at L5-S1, but it did note loss of disc height and endplate degenerative change.
[¶ 6] From the end of 2004, Ms. Hirsch was generally pain-free and asymptomatic until 2009. On May 17, 2009, she slipped and fell while working at a Taco Bell restaurant in Jackson, Wyoming. At the hearing before the OAH, she testified
The only pain that Ms. Hirsch described feeling at the time of the incident was that her "whole right leg hurt" and that her ankle was "killing" her.
[¶ 7] After finishing her shift, Ms. Hirsch went to the local hospital emergency room, where orthopedic surgeon David Khoury treated her ankle injury. Dr. Khoury diagnosed Ms. Hirsch with an ankle "sprain," and over the next several months treated her with "four different casts, a couple of boots, and ... crutches."
[¶ 9] Dr. Blum first examined Ms. Hirsch on July 17, 2009, at which time she complained only of ankle and lower leg pain, and not of back pain. He recommended lumbar sympathetic nerve block treatments. He administered nine sympathetic block treatments over several months. These caused serious pain at the injection site in her back, as well as incontinence which started after the third injection, according to Ms. Hirsch.
[¶ 10] Dr. Jost eventually determined that Ms. Hirsch's ankle required reconstructive surgery, which she performed on August 18, 2009.
[¶ 11] Ms. Hirsch applied for medical benefits and temporary total disability payments related to her right ankle injury. The Division found that the ankle injury was compensable and approved the benefits, opening a 2009 file which was separate from the file it had opened in 2004 for her back injury. Ms. Hirsch was released to return to work after her ankle injury on April 30, 2010.
[¶ 12] Months after her ankle surgeries, Ms. Hirsch began to experience back pain. While she contends that certain records
[¶ 13] Dr. Skene conducted a physical examination and found that Ms. Hirsch's gait was somewhat antalgic (the stance phase of the gait was shortened in relation to the swing phase in order to reduce pain), that there was tenderness to palpation in the left lumbar area, and that she had lower lumbar pain with extension and rotation bilaterally. His assessment was "[r]ecurrent HNP [herniated nucleus pulposus — i.e., herniated disc] L5-S1... [with] one episode of urinary incontinence." Based upon his evaluation, Dr. Skene recommended an MRI. The MRI showed:
[¶ 14] After the MRI, Ms. Hirsch met with Dr. Skene again on December 21, 2009. Dr. Skene's notes from this visit are the first medical record reflecting Ms. Hirsch's attempt to connect her back pain to the May 2009 incident resulting in her right ankle injury. His note reports that:
As the hearing examiner pointed out, Ms. Hirsch testified at the contested case hearing that her episodes of incontinence started after the third sympathetic block lumbar injection by Dr. Blum, not at the time of the 2009 incident in which her ankle was injured, contrary to what she told Dr. Skene.
[¶ 15] On December 23, 2009, Dr. Joshua Beck, another orthopedic surgeon, performed a physical examination and reviewed x-rays and the recent MRI of Ms. Hirsch's back. His notes reflect that her chief complaints at the time were low back and bilateral leg pain with numbness and tingling. However, Dr. Beck noted nothing indicating that Ms. Hirsch attributed these symptoms to the May 17, 2009 incident which caused her ankle injury. Ms. Hirsch testified at the contested case hearing before the OAH that she was upset with Dr. Beck because he was rude to her. Dr. Beck determined that she was not a good candidate for surgery due to a number of factors, and Ms. Hirsch sought a second opinion.
[¶ 16] On January 5, 2010, Ms. Hirsch met with Dr. Mary Neal, a board certified orthopedic surgeon whose practice is focused on spinal surgery. Dr. Neal's initial office note states:
Dr. Neal asked Ms. Hirsch to return with a copy of her medical records so that she could review them.
[¶ 17] At the second appointment on January 21, 2010, Ms. Hirsch returned with the requested records, including an MRI of her spine from December of 2004, which Dr. Neal compared to the MRI from December of 2009. Dr. Neal found that "[i]n review of the MRI scans, there is a right parmedian extrude disc fragment at T12-L1 ... [and] discogenic changes at L3-4, L4-5, and L5-S1. L5-S1 has degenerative changes and modic changes...." Dr. Neal felt that these findings could account for Ms. Hirsch's back pain, but she was not sure how to explain Ms. Hirsch's lower extremity symptoms. She ordered a myelogram and a CT scan to provide further diagnostic information.
[¶ 18] After reviewing the CT scan, Dr. Neal determined that there was significant degenerative disc disease at L5-S1, as well as herniated nucleus pulposus from the interior of the disc at T12-L1. Dr. Neal indicated that the latter was clearly related to her first workplace injury, as the same abnormality was visible on her 2004 MRI scan. Based upon these findings, Dr. Neal determined that surgical intervention was necessary to address both the herniated and the degenerated disc, which were probably causing Ms. Hirsch pain in the thoracic/upper back and lumbar regions.
[¶ 19] On February 16, 2010, after a discussion of the risks the surgical procedure entailed, Ms. Hirsch agreed that Dr. Neal
[¶ 20] Ms. Hirsch submitted a preauthorization for the surgery to the Division, but mistakenly submitted it under the 2004 worker's compensation case number. Dr. Neal performed an L5-S1 fusion and a hemilaminectomy with discectomy at T12-L1 on March 3, 2010, before the Department responded to the preauthorization request. Ms. Hirsch submitted the bills for the procedure to the Division for reimbursement, but the Division declined to pay them on April 5, 2010, determining that her new back issues were not related to the original 2004 work injury.
[¶ 21] The Division issued a final determination under the 2009 case number on May 5, 2010, formally denying the preauthorization request for back surgery which had already been performed. Ms. Hirsch had also applied for temporary total disability benefits, and that request was also denied because the Division's records indicated that she was released to return to work on May 1, 2010. She objected to the Division's determination, stating that her "back was injured as a result of the 2009 injury and ... [she] is not released to work because of her back injury." The matter was then referred to the OAH for a contested case hearing.
[¶ 22] Dr. Neal testified to the following by deposition at the hearing:
[¶ 23] The Division required Ms. Hirsch to submit to medical examinations by two physicians it selected, Drs. Paul Ruttle, M.D. and Brian Tallerico, D.O.
[¶ 24] The Division requested that Dr. Ruttle assess Ms. Hirsch in relation to the back injury "sustained on August 3, 2004." As a result, his discussion of the case and his conclusions are somewhat confusing because his evaluation was directed to whether Ms. Hirsch's condition in 2010 was related to the 2004 lumbar spine injury. He did an extensive review of the medical records from November 2003 through March 2010, focused on that issue in his examination of Ms. Hirsch, and also reviewed three MRI scans.
[¶ 25] As to whether Ms. Hirsch's back pain required surgery in 2010, and her claim that this pain was related to the use of crutches or walking with a cast after her ankle injury, Dr. Ruttle commented:
Dr. Ruttle's letter opinion did not address the significance, if any, of the fact that Ms. Hirsch evidently did not suffer from low back pain or symptoms from December 2004 until December of 2009; rather, he simply found that it was unlikely that the use of crutches rendered the degenerative segment symptomatic. This conclusion is not particularly helpful to resolving the central issue in the case.
[¶ 26] On September 14, 2010, Ms. Hirsch was examined by Dr. Tallerico. He also reviewed all of the medical records available, including those of Drs. Neal, Blum, Beck, Skene and Jost. He noted that as of December 2009, there was no record of any low back complaint. The history taken by Dr. Tallerico states that Ms. Hirsch indicated that she did not have any back pain until after the first ankle surgery, which was roughly three months after the incident.
[¶ 27] After reviewing Ms. Hirsch's medical records and examining her, Dr. Tallerico agreed that the right ankle injury was caused by the May 2009 incident, as the Division had already decided. However, he did not believe that the post-2009 complaints of thoracic and lumbar pain were related to the May 2009 accident. His conclusion was as follows:
However, like Dr. Ruttle, Dr. Tallerico did not address the fact that Ms. Hirsch was asymptomatic in her lower back from December of 2004 to December of 2009, when her back pain reappeared. Rather, his opinion focused more on the absence of any complaint of back pain after the incident on May 17, 2009.
[¶ 28] A contested case hearing was held before the OAH on January 13, 2011. Ms. Hirsch testified at the hearing and offered the testimony of Dr. Neal by deposition. Basing her claim on two theories — aggravation of a preexisting condition and second compensable injury — she relied on Dr. Neal's testimony that the use of crutches, a walking boot, and the ankle injury aggravated her preexisting condition and that certain factors masked the back pain until months later. The Division presented the opinions of Drs. Ruttle and Tallerico by offering letters containing their findings from the medical examinations they had performed. As explained supra, both concluded that Ms. Hirsch's back pain was not related to the May 2009 incident or ensuing use of crutches and walking boot.
[¶ 29] After the hearing, the OAH issued a detailed 23-page Findings of Fact, Conclusions of Law, and Order upholding the Division's denial of Ms. Hirsch's requests for benefits on the ground that she had not met her burden of proving that she suffered aggravation of a preexisting back condition as a result of a work related injury. It also rejected her argument that she had suffered a second compensable injury.
[¶ 30] Ms. Hirsch petitioned the district court for review pursuant to Rule 12 of the Wyoming Rules of Appellate Procedure. Before a decision on the merits was rendered, however, the Division moved to supplement the record with a video recording of the May 17, 2009, incident, as permitted under W.R.A.P. 12.08. The district court granted the Division's motion to supplement the record and remanded the case to the OAH for further proceedings.
[¶ 31] After considering objections by Ms. Hirsch, the OAH admitted the video as supplemental evidence. Upon reviewing the video tape, the OAH issued its Order on Remand and affirmed its prior decision, concluding that the "video does lead to an additional finding that Hirsch's description of a fall to the ground is not credible ... [and] that the basis for Dr. Neal's opinion as to the back injury occurring as a result of twisting is further weakened by the video evidence."
[¶ 32] Upon issuance of the Order on Remand, Ms. Hirsch filed a motion for new hearing and amendment of the order after remand, which the hearing examiner denied. Ms. Hirsch again petitioned the district court
[¶ 33] On appeal from a district court's review of an administrative decision, we review the case as if it had come directly from the administrative agency. Birch v. State ex rel. Wyoming Workers' Safety & Comp. Div., 2014 WY 31, ¶ 12, 319 P.3d 901, 906 (Wyo.2014). Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2013), examining agency findings of fact by applying the substantial evidence standard and considering conclusions of law de novo. Birch, ¶ 12, 319 P.3d at 906; see Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo.2008).
[¶ 34] Regarding an agency's decision that the claimant did not satisfy her burden of proof, we have explained:
Leavitt v. State ex rel. Wyoming Workers' Safety & Comp. Div., 2013 WY 95, ¶ 18, 307 P.3d 835, 840 (Wyo.2013) (citations and quotation marks omitted); see Little v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2013 WY 100, ¶ 28, 308 P.3d 832, 840 (Wyo.2013).
[¶ 35] We also apply the arbitrary and capricious standard of review as a "safety net" to catch agency action "which prejudices a party's substantial rights or which may be contrary to the other review standards under the Administrative Procedure Act, yet is not easily categorized or fit to any one particular standard." Jacobs v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2013 WY 62, ¶ 9, 301 P.3d 137, 141 (Wyo. 2013).
[¶ 36] The Wyoming Worker's Compensation Act defines a compensable injury as one "arising out of and in the course of employment." Wyo. Stat. Ann. § 27-14-102(a)(xi) (LexisNexis 2013). In a contested case hearing for worker's compensation benefits, the claimant must prove all of the essential elements of her claim by a preponderance of the evidence, including a causal connection between a work-related incident and her injury. Hayes v. State ex rel. Wyoming Workers' Safety & Comp. Div., 2013 WY 96, ¶ 14, 307 P.3d 843, 847 (Wyo.2013); 8 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 130.06[3][a] (2013). "We explained long ago that the `arising out of' language of § 102(a)(xi) requires there to be a causal connection, a nexus between the injury and some condition, activity, environment or requirement of the employment." Little, ¶ 29, 308 P.3d at 841 (ellipsis and some quotation marks omitted).
[¶ 37] Congruent with this requirement, coverage is excluded for "[a]ny 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." § 27-14-102(a)(xi)(G). That said, "[a]lthough preexisting conditions are excluded from the definition of compensable injury by Wyo. Stat. Ann. § 27-14-102(a)(xi)(F) (LexisNexis 2013), an employee may recover if his employment aggravated, accelerated, or combined with the disease or infirmity to produce the condition for which compensation is sought." Hayes, ¶ 14, 307 P.3d at 847 (quotation marks omitted).
[¶ 38] The OAH hearing examiner had to decide whether the back pain Ms. Hirsch began to experience in the latter part of 2009 was causally connected to the May 2009 incident and immediately ensuing compensable ankle injury. Ms. Hirsch advanced two alternative but related theories of recovery — aggravation of a preexisting condition or second compensable injury.
[¶ 39] Ms. Hirsch contends that the hearing examiner's decision to deny benefits is contrary to the overwhelming weight of the evidence in the record. She argues that Dr. Neal's records and testimony establish a sufficient causal connection between the May 2009 incident and the increase in back pain due to aggravation of a preexisting injury. Ms. Hirsch also maintains that the hearing examiner improperly discounted her treating physician's testimony as to the cause of her back pain. Although this case presents a close call, after reviewing the entire record and adhering to our standard of review, we must disagree.
[¶ 40] Ms. Hirsch's burden of proof consists of two elements: the burden of production and the burden of persuasion. See Little, ¶ 34, 308 P.3d at 842. The burden of production "involves the obligation of a party to present, at the appropriate time, evidence of sufficient substance on the issue involved to permit the fact finder to act upon it." Id. (quoting Joyner v. State, 2002 WY 174, ¶ 18, 58 P.3d 331, 337 (Wyo.2002)). In turn, the burden of persuasion is "the burden of persuading the trier of fact that the alleged fact is true." Id. (quoting 2 McCormick on Evidence § 336, at 664 (7th ed.2013)).
[¶ 41] Ms. Hirsch carried her burden of production by virtue of Dr. Neal's testimony that it was more probable than not that the May 2009 incident contributed in a material fashion to the aggravation of her delayed back injury. "A claimant produces sufficient evidence of causation to meet his burden of production when the medical expert testifies that it is more probable than not that the work contributed in a material fashion to the precipitation, aggravation or acceleration of the injury." Little, ¶ 35, 308 P.3d at 842 (internal quotation marks omitted). "Testimony by the medical expert to the effect that the injury `most likely,' `contributed to,' or `probably' is the product of the workplace suffices under our established standard." Id. Specifically, Dr. Neal opined:
[¶ 42] While Ms. Hirsch produced sufficient expert testimony to meet her burden of production, she also bore the burden of persuasion; that is, the obligation to persuade the hearing examiner that her delayed back pain was in fact causally connected to the May 2009 incident. The hearing examiner did not find Dr. Neal's testimony as convincing as the opinions of the Division's experts, primarily because of the tenuous explanation for the absence of complaints of back pain until months after the May 2009 incident. Dr. Neal's testimony was directly contradicted by the expert medical opinions of Drs. Ruttle and Tallerico. See supra, ¶¶ 25, 27. "When conflicting medical opinions are presented at the contested case hearing, the agency has the responsibility, as the trier of fact, to determine relevancy, assign probative value, and ascribe the relevant weight given to the evidence presented." Hayes, ¶ 16, 307 P.3d at 849.
[¶ 43] The hearing examiner was in the best position to judge and weigh the medical evidence, and she was permitted to disregard an expert opinion if she found the opinion unreasonable or not adequately supported by the facts upon which it was based. See id. The examiner was confronted with conflicting medical opinions, and the evidence did not persuade her that Ms. Hirsch's preexisting back condition was materially aggravated by the May 2009 incident.
[¶ 44] Our review of the record finds sufficient evidence to support the OAH decision. Accordingly, whether we might reach the same result or not, we will not reweigh the evidence, but will instead defer to the OAH decision because it is based upon relevant evidence that a reasonable mind might accept. See Spletzer v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2005 WY 90, ¶¶ 21-22, 116 P.3d 1103, 1112 (Wyo.2005).
[¶ 45] Lastly, as pointed out by Ms. Hirsch, medical testimony may not always be necessary to establish causation. See Hayes, ¶ 19, 307 P.3d at 849. We do not find it necessary to analyze whether medical testimony was necessary to establish causation in this case, because both parties did in fact present expert testimony on that issue. The hearing examiner simply believed the Division's experts rather than Dr. Neal.
[¶ 46] Ms. Hirsch did not carry her burden of persuading the OAH that the May 2009 incident caused her later back pain. The record contains substantial evidence without the contested supplementation to support the OAH's initial decision to deny benefits.
[¶ 47] Affirmed.
Sonnett v. First Am. Title Ins. Co., 2013 WY 106, ¶ 26, 309 P.3d 799, 808 (Wyo.2013). "This Court has consistently held that it need not consider issues which are not supported by proper citation of authority and cogent argument or which are not clearly defined." Id. (internal quotation marks omitted). For this reason, we will not consider Ms. Hirsch's alternative argument.
