IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 100

APRIL TERM, A.D. 2013

August 22, 2013

IN THE MATTER OF THE 

WORKER’S COMPENSATION

CLAIM OF:

MARSHALL S. LITTLE,

Appellant

(Petitioner),

v.

STATE OF WYOMING ex rel.

DEPARTMENT OF WORKFORCE

SERVICES, WORKERS’

COMPENSATION DIVISION,

Appellee

(Respondent).

S-12-0268

Appeal from the District Court of Campbell County

The Honorable John R. Perry, Judge 

Representing Appellant:

Donna D. Domonkos, Attorney at Law, Cheyenne, Wyoming

Representing Appellee:

Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy 

Attorney General; Michael J. Finn, Senior Assistant Attorney General; Michael T. 

Kahler, Senior Assistant Attorney General

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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.
1

DAVIS, Justice.

[¶1] Appellant Marshall S. Little suffered a lower back injury when he was drawn into 

a mixing chute of a hot mix plant used by the paving company he worked for in 1988. 

He underwent a lumbar surgery in 1989. His condition improved in the early 1990s, and 

he did not require treatment for his back injury for several years. In 2007, he began 

seeing an internist, who diagnosed him with an arthritic hip and recommended a hip 

replacement. Mr. Little submitted a bill for $87.00 for the office visit to the Wyoming

Workers’ Safety and Compensation Division (the Division). 

[¶2] The Division declined to pay the bill because it believed the hip condition to be 

unrelated to the original work injury. Mr. Little objected and requested a contested case 

hearing before the Office of Administrative Hearings (OAH). The OAH hearing 

examiner found that Mr. Little was not entitled to benefits for a second compensable 

injury, relying on an orthopedic surgeon’s evaluation that the arthritic hip was not related 

to the original compensable injury. The district court affirmed, and we likewise affirm, 

finding that substantial evidence supports the hearing examiner’s findings and 

conclusions in a case involving conflicting expert opinions.

ISSUE

[¶3] Does substantial evidence support the hearing examiner’s decision that Mr. Little 

was not entitled to benefits for a second compensable hip injury?

FACTS

[¶4] Mr. Little sustained a compensable injury to his lower back and neck on June 8, 

1988. He worked for Cundy Asphalt & Paving Inc. in Gillette, and he was attempting to 

repair the conveyor belt on a hot mix plant. A co-worker accidentally turned the 

conveyor belt on, and Mr. Little was drawn backwards into an 18 x 24 inch chute and 

literally folded in half. He filed a claim for worker’s compensation benefits and began a 

course of treatment with two orthopedic surgeons, Dr. Gerald Baker of Gillette Bone & 

Joint Clinic and Dr. Robert Snider of Orthopedic Surgeons, P.S.C. in Billings, Montana. 

[¶5] The medical records reflecting treatment of Little’s initial injury are incomplete, 

but we can glean the following from what we have. Dr. Baker treated Mr. Little from the 

date of his accident for about two months. Dr. Baker believed that Mr. Little had 

suffered a mild to moderate musculo-ligamentous strain of his lumbar spine, and treated 

him with muscle relaxants, pain medications, and physical therapy. 

[¶6] Dr. Snider first saw Mr. Little about two months after his accident. His initial 

clinical impression was that Mr. Little had suffered a lower back sprain and that he had 

anatomic spinal stenosis or narrowing of the spinal canal at the L3-4 and L4-5 levels of
2

the lumbar spine based on a CT scan ordered by Dr. Baker. He was not certain that Little

was suffering from symptoms caused by compression of the spinal nerves due to the

stenosis.

[¶7] Mr. Little reported difficulty walking, as well as pain and numbness in his right 

leg and thighs. However, a functional capacity evaluation ordered by Dr. Snider and 

performed by a physical therapist in December of 1988 concluded that Mr. Little’s 

overall pain level did not correlate with his observed capabilities in testing. The 

evaluation also found poor effort, shaking, and symptom magnification. Dr. Snider’s 

clinic notes from 1988 and 1989 likewise indicated that Mr. Little had “markedly 

exaggerated responses” to certain testing maneuvers, that he seemed to exaggerate his 

symptoms at various times during office visits, and that his complaints of pain were 

anatomically suspect based on the distribution of his perceived pain. 

[¶8] The medical records indicate that Dr. Snider remained unconvinced for a time that 

Mr. Little had suffered any injury other than a sprain, which did not require surgical 

intervention. However, in January of 1989, Dr. Snider evidently changed his mind and 

on February 15, 1989, a decompressive laminectomy at the L3-L4 and L4-L5 level was

performed on Mr. Little.1The operative report for that surgery is not in the record, but a

laminectomy generally removes a portion of a vertebrae called the lamina to relieve

pressure on spinal nerves. See Stedman’s Medical Dictionary 964 (2000). Mr. Little 

testified that he had a second back surgery after the laminectomy, but we have no records 

of that procedure. 

[¶9] Following the surgery, Mr. Little continued to report persistent pain and 

discomfort in his lower back, buttocks, and right thigh. However, Dr. Snider’s postoperative notes indicated that a magnetic resonance imaging study “looks fairly good,” 

and that “he is doing really pretty well.” Dr. Snider also noted that Mr. Little continued 

to display exaggerated responses.

[¶10] Dr. James Lovitt, another orthopedic surgeon with Dr. Snider’s practice,

performed a comprehensive physical exam in August of 1989, and found as follows:

Overall . . . he had no motor function loss with determined

testing. Sensory exam revealed paresthesia production [a

sensation of numbness or tingling in the skin] in the medial

leg below the knees and the dorsal feet. Otherwise, sensory

exam was unremarkable. Indirect straight leg raising is

unremarkable. Hamstrings are right. Supine straight leg 

 

1

Some of the notes indicate that the surgery was performed by another physician associated with Dr. 

Snider’s office.
3

raising produces no symptoms. . . . Looking for motor point 

tenderness in the calves elicited some “tenderness in my 

calves”, however this is not really impressive. . . . There is no 

atrophy. . . . Hips and SI joints unremarkable.

[¶11] Dr. Lovitt concluded that Mr. Little “has a plethora of nonorganic findings and an 

abnormal pain diagram suggestive of an associated perceptual disorder.” He 

recommended a lower back brace and believed Mr. Little could benefit from vocational 

rehabilitation which would train him for lighter duty work. 

[¶12] Mr. Little reached maximum medical improvement in September of 1990 and 

received a 27% whole body impairment award for his lower back injury shortly 

thereafter. The record does not reflect any medical treatment for nearly seven years. 

However, from March of 1997 through December of 2000, his orthopedists noted several 

complaints of neck pain, lower back pain, difficulty walking, and pain in his right leg. 

Their overall clinical impression was of cervical spondylosis2and severe degenerative

disc disease at the L4-L5 level of the lower back. A physical examination indicated

normal reflexes at the knee level, but also a “giving way type of resistance in the lower 

extremities” during strength testing. 

[¶13] Mr. Little began seeing Dr. Kirtikumar Patel in July of 2003. Dr. Patel is boardcertified in internal medicine rather than orthopedics. Dr. Patel initially noted as follows:

No obvious muscle wasting. . . . Straight leg raising testing

would increase the pain in the low back. Internal and external

rotation of the hip joint was normal. Movements of the knees

and the ankles were normal. The patient had significant pain

the low back and the paraspinal muscles. The patient had a

difficult time standing on one foot at a time. Gait was very

slow and deliberate, trying to fail with the right side.

Dr. Patel noted complaints of right leg pain in February of 2006, along with difficulty

with walking and driving long distances. However, Dr. Patel also reported that hip and 

knee movements were normal bilaterally, and that Mr. Little’s gait was normal. 

[¶14] In January of 2007, Dr. Patel diagnosed “developing problems in the right hip area 

and possible osteoarthritis.” X-rays of Mr. Little’s right hip were taken, and the 

radiologist who read them reported “[d]egenerative changes of the hip joints as noted, 

 

2 Age-related wear and tear of the spinal discs in the neck. Cervical Spondylosis, MayoClinic.com,

http://www. mayoclinic.com/health/cervical-spondylosis/DS00697.
4

right greater than left.” Dr. Patel’s review of the x-rays also indicated “osteoarthritis,

more on the right than the left.”3

[¶15] Mr. Little was admitted to the Campbell County Memorial Hospital for hip pain in 

April of 2009. X-rays were taken, and the radiologist’s report indicated the following:

FINDINGS: AP view of the pelvis is compared with a prior

examination from February 2007. There are now more

advanced arthritic changes of the right hip joint and

buttressing of the femoral neck when compared to that study.

. . . Mild to moderate degenerative changes of the left hip

joint are noted as well and are stable to slightly more

prominent.

. . .

IMPRESSION:

1. Degenerative changes in the lower lumbar spine, and

pronounced arthritic changes of the right hip, progressing

from 2007 study, as well as mild to moderate arthritic

changes of the left hip.

Following a physical examination and review of x-rays, an emergency room physician 

noted “back and right lower extremity pain, greater than left lower extremity pain with 

degenerative changes . . . .” 

[¶16] In February of 2008, Dr. Patel reported that “the patient has also developed 

significant osteoarthritis, probably because of overcompensation. . . . He may eventually 

need a total hip replacement.” A progress note from March of 2009 likewise indicated 

that Mr. Little complained of right leg pain, and that he walked with “a wobbly gait 

favoring the right leg.” However, Dr. Patel also noted that Mr. Little was able to stand 

without difficulty, and that his right hip, knee, and ankle had normal stability. 

[¶17] Mr. Little returned for another visit with Dr. Patel on February 11, 2010. Dr. 

Patel’s notes from that visit indicated decreased stability, restricted range of motion, and 

tenderness to palpation with the right hip. Dr. Patel’s overall assessment indicated the 

following: 

 

3 The Division asked Dr. Patel for information on whether “the current right hip treatment is related to the

original work injury” in April of 2007. The record is unclear on whether Dr. Patel provided this 

information, but the Division did not object to paying for Mr. Little’s medical treatment at that time.
5

[O]steoarthritis in both hips more on right than left now has

muscle wasting and weakness of the right leg leading to

decreased ambulation and drags his right leg when walking[.]

I think the hip has been damaged from his compensation for

his back pain over the years and he had some injury at the

time of accident to the hip . . . . [H]e will check with 

Worker’s Comp possible surgery that he might need for right 

hip replaced.

Dr. Patel also advised Mr. Little to see an orthopedic surgeon about a hip replacement.4

[¶18] Mr. Little saw Dr. Patel again on September 14, 2010. Dr. Patel noted continued 

overcompensation and severe osteoarthritis, and again recommended a total hip 

replacement. Dr. Patel billed the Division $87.00 for the visit, but the Division denied 

payment, evidently anticipating a much larger claim for the hip replacement and perhaps 

an argument that by paying this small bill it had found Mr. Little’s need for a hip 

replacement to be related to his compensable injury years before. It issued a final 

determination stating that “[t]he bilateral hip osteoarthritis is not related to the originial 

[sic] work injury.” Mr. Little requested a contested case hearing, and the matter was 

referred to an OAH hearing examiner. 

[¶19] In February 2011, orthopedic surgeon Richard E. Torkelson performed an 

independent medical evaluation at the Division’s request. Dr. Torkelson reviewed Mr. 

Little’s medical records and radiographic studies. He also conducted a physical 

examination which included the taking of a history, a neurovascular exam of the lower 

extremities, and range of motion testing of the lower extremities. He ultimately 

concluded that Mr. Little’s right hip problems were unrelated to the original work injury:

The diagnosis is severe degenerative arthritis, bilateral hips,

right greater than left. My recommended treatment plan

would be total hip arthroplasty5starting on the right side.

With regard to the specific questions posed;

1. The bilateral hip care and treatment/interventions are not

related to the original work injury of 1988. My reasoning for

coming to this conclusion is that in my review of the 

 

4 The Division objected to payment for this visit, stating that this treatment was unrelated to the original

work injury. It later withdrew its objection but reserved its right to dispute further claims. Both parties 

agreed at the contested case hearing that the Division’s payment for earlier visits would not have a 

preclusive effect on later claims.

5 Hip replacement. See Stedman’s Medical Dictionary 150 (2000).
6

exhaustive records provided by your office, he saw multiple

physicians including several orthopedic surgeons, as well as

neurosurgeons in the period from 1988 forward and hip

osteoarthritis was not diagnosed until January of 2007, 19

years later. The note from Gillette Internal Medicine

Associates [Dr. Patel] dated July 29, 2007, indicates that the

patient told the examiner that he began experiencing pain in

the right hip three months prior to the January 29, 2007 visit.

The patient advised me that he had had pain in both lower

extremities and this is well documented, but the diagnosis

during that period of time was not related to hip arthritis, but

rather radiating pain from his lumbosacral injury. In

summary, there is no evidence of diagnosis of

osteoarthritis of his hips at any time during multiple

physician visits from 1988 to 2007. It is my opinion, to a

degree of medical probability, that the current

osteoarthritis is completely unrelated to his injury.

Osteoarthritis in a person of his age is not unusual in the

absence of any injury.

2. Utilizing the same reasoning, it is my opinion that the

proposed right total hip arthroplasty is not directly related to

the original work injury of 1988 and the left hip osteoarthritis

is also not directly related to the original work injury of 1988.

(Emphasis added.)

[¶20] Dr. Patel was deposed shortly before the contested case hearing. He testified to 

his qualifications as a board-certified internist, and that he regularly deals with arthritis, 

sprains, strains, and chronic pain in adults. When he began seeing Mr. Little in 2003, he 

was unaware of any hip problems and only knew that Mr. Little had chronic pain. Mr. 

Little did not display any symptoms of hip pain during his first visit, but Dr. Patel 

testified that the osteoarthritis could have been in an early and less symptomatic stage at 

that time. Dr. Patel could not obtain any previous medical records, and he felt that the 

results of his initial examination did not warrant a more comprehensive workup. 

[¶21] Dr. Patel testified that he began treating Mr. Little for osteoarthritis of the right hip 

joint in 2007. He described osteoarthritis as “basically a wear-and-tear of the joint” 

which can be caused by normal aging over time, a specific injury to that joint, or 

overcompensation due to other injuries. However, he testified that “there is no specific 

test, no specific exam or no specific time to tell where this [osteoarthritis] came from or 

how it came. It’s a clinical diagnosis and a clinical impression.” 
7

[¶22] Dr. Patel testified as follows about the cause of Mr. Little’s osteoarthritis:

A. . . The patient had also developed significant

osteoarthritis, probably because of over-compensation from

his previous injuries. . . .

. . .

Q. . . . Does that remain your opinion today?

A. . . . In my clinical judgment, yes, that is a possible

outcome of his injuries. . . .

. . .

. . . I was not privy to his actual injury initially, what

was done. So . . . whether he had initial injuries to the hip 

area, I don’t know.

. . .

But from my four, five years of seeing him, my

impression was that, yeah, he was developing osteoarthritis

and most commonly probably related to his other previous

injuries and his ongoing problems.

. . .

So when you either put more weight on the right hip

joint all of the time, or if you just stand in a certain way all the

time, or if that caused the overuse leading it to osteoarthritis.

Q. And based on your training and experience and with a

reasonable degree of medical probability, is it your opinion 

that that’s what happened to Marshall?

A. That’s what I think, yes.

. . .

Q. . . . [D]o you feel that Marshall’s current right hip 

treatment is related to his original work injury?
8

A. It possibly still is, because in this letter [the 2007 request

for information from the Division] it says that he has some

pain in the right leg since this accident . . . maybe those same

symptoms have probably progressed.

Q. And, again, your opinion as you’ve described earlier is that 

the symptoms that he’s having and the problems that he’s 

having in his right leg are probably related to his original work 

injury?

A. Possibly.

Q. Possibly?

A. Yes.

(Emphasis added.)

[¶23] Cross-examination by the Division’s attorney established that Mr. Little was obese 

and that he smoked cigarettes. Dr. Patel testified that he was unfamiliar with any 

correlation or studies linking osteoarthritis to smoking or obesity. However, he 

acknowledged his limited expertise in this area: “[Y]ou can ask the orthopedist, because 

they do deal with the final outcome of whatever etiology is of the osteoarthritis and if 

needing a replacement or surgery, because we [internists] usually just treat the symptoms. 

We don’t intervene any surgery.” Dr. Patel also testified that “[i]t’s really difficult to put 

a timeline once you find arthritis,” and that an orthopedist could answer questions about 

the onset of hip arthritis due to prior injuries. 

[¶24] Mr. Little was the only witness who testified in person at the contested case 

hearing. He indicated that before his 1988 injury he was physically active and had no hip 

pain. He immediately felt pain to his lower back and down through his legs after being 

drawn into the hot mix plant chute. He testified that he had hip pain soon after the 

accident, but that he assumed that physical therapy would help. He also “walk[ed]

weird,” favoring his right leg, and he fell down several times before his first back 

surgery. 

[¶25] Mr. Little testified that he actually had two surgeries to his back and one to his 

neck in the late 1980s and early 1990s. He acknowledged that his back surgeries relieved 

his leg pain and weakness. He used a cane after his first surgery, but he eventually felt 

better and became more mobile from 1991 through 2001. He still walked with a limp and 

favored his right leg during this period. However, from 1992 through 1995, he “could 

almost get a normal stride,” and only used his cane as a stabilizer during the winter
9

months. Mr. Little also testified that he did not see any doctors about his injury from

1990 through 1997.

[¶26] Mr. Little began seeing Dr. Patel for pain management in 2003. He acknowledged 

that he had not been diagnosed with osteoarthritis in his hip before 2007. However, he 

claimed that he had hip pain well before 2007. He saw Dr. Patel for hip pain because 

“the pain . . . was becoming more than I could deal with.”

[¶27] The hearing examiner issued a written order denying benefits for treatment of hip 

osteoarthritis, concluding as follows:

[I]t is the Claimant’s contention that he either sustained an 

initial injury to his hip and, as a result, developed 

osteoarthritis in his hip requiring hip replacement surgery or, 

in the alternative, the Claimant contends that the osteoarthritis 

developed as a result of a change in gait due to his lower back 

injury and, therefore, he sustained a second compensable 

injury. As to the contention that the Claimant sustained an 

injury to his hip in 1988, the medical records do not support 

such a contention [reference to several medical records]. . . . 

The Office finds that this evidence does not indicate that the 

Claimant sustained any specific injury to his hip in 1988 and 

that the degenerative osteoarthritis developed over time for 

some other reason. The question then becomes whether the 

Claimant’s degenerative osteoarthritis which occurred over a 

substantial period of time was as a result of his initial workrelated injury. As an injury which occurs over of a 

substantial period of time, it is the Claimant’s burden to prove 

by competent medical authority that his degenerative 

condition was directly as a result of his initial compensable 

injury. The Claimant contends that he has met such burden 

through the testimony of Dr. Patel. . . . In his deposition, Dr. 

Patel acknowledges the contents of his medical records; 

however he is then specifically asked as to whether or not he 

felt the Claimant’s right hip treatment is related to his original 

work injury. He specifically responds, “It possibly still is, 

because in this letter it says that he has some pain in the right 

leg since this accident, and this was 2007; so it’s almost about 

four years, four-and-a-half years since that. And maybe those 

same symptoms have probably progressed.” Dr. Patel is 

again asked whether the Claimant’s symptoms and the 

problems he is having with his right leg are probably related 

to his original work injury. Again, his response, “Possibly.”
10

The Office finds that such testimony does not satisfy the

Claimant’s burden of proof to show a causal relationship as 

required under the law, especially in view of the medical 

opinion provided by Dr. Torkelson. . . . [T]he Office must 

find Dr. Torkelson’s opinions more probative in this matter.

The district court affirmed, and this appeal followed.

STANDARD OF REVIEW

[¶28] We review an agency’s findings of fact arising from a contested case hearing for 

substantial evidence:

Substantial evidence is relevant evidence which a

reasonable mind might accept in support of the agency’s 

conclusions. Findings of fact are supported by substantial 

evidence if, from the evidence in the record, this Court can 

discern a rational premise for the agency’s findings. When 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 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. 

Jacobs v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2013 WY 62, ¶ 8, 301 P.3d 

137, 141 (Wyo. 2013) (citations omitted); see also Wyo. Stat. Ann. § 16-3-114(c)(ii)(E) 

(LexisNexis 2013); W.R.A.P. 12.09. We defer to the agency’s (or the hearing 

examiner’s) determination of witness credibility unless it is clearly contrary to the 

overwhelming weight of the evidence. Willey v. State ex rel. Wyo. Workers’ Safety & 

Comp. Div., 2012 WY 144, ¶ 20, 288 P.3d 418, 427 (Wyo. 2012) (quoting Beall v. Sky 

Blue Enters., 2012 WY 38, ¶ 28, 271 P.3d 1022, 1034 (Wyo. 2012)). We also accord “no 

special deference to the district court’s decision and . . . consider the case as if it came 

directly from the agency.” Decker v. State ex rel. Workers’ Safety & Comp. Div., 2013 

WY 75, ¶ 7, 303 P.3d 1134, 1136 (Wyo. 2013) (quoting In re Jensen, 2001 WY 51, ¶ 9, 

24 P.3d 1133, 1136 (Wyo. 2001)).

DISCUSSION

[¶29] The Wyoming Worker’s Compensation Act (the 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); Perry v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 

2006 WY 61, ¶ 12, 134 P.3d 1242, 1246 (Wyo. 2006). We explained long ago that the
11

“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.” Matter of Willey, 571 P.2d 248, 250 (Wyo. 1977) (citation omitted); see 

also Shelest v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 WY 3, ¶ 8, 222 

P.3d 167, 170 (Wyo. 2010); 1 Arthur Larson & Lex K. Larson, Larson’s Workers’

Compensation Law § 3.01 (2013). Consistent with this requirement, the Act excludes 

from coverage “[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); Shepherd of Valley Care Ctr. v. Fulmer, 

2012 WY 12, ¶ 33, 269 P.3d 432, 442 (Wyo. 2012).

[¶30] A single work accident can give rise to more than one compensable injury. In re 

Kaczmarek, 2009 WY 110, ¶ 9, 215 P.3d 277, 281 (Wyo. 2009) (citation omitted). The 

second compensable injury rule allows recovery when “an initial compensable injury 

ripens into a condition requiring additional medical intervention.” Id. (quoting Yenne–

Tully v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 12 P.3d 170, 172 (Wyo. 

2000)). However, a subsequent injury or condition is compensable only if it is causally 

related to the initial compensable injury. Hoffman v. State ex rel. Wyo. Workers’ Safety 

& Comp. Div., 2012 WY 164, ¶ 9, 291 P.3d 297, 301 (Wyo. 2012) (quoting Rogers v. 

State ex rel. Wyo. Workers’ Safety & Comp. Div., 2012 WY 117, ¶ 14, 284 P.3d 815, 819 

(Wyo. 2012)); see also Ball v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2010 

WY 128, ¶ 25, 239 P.3d 621, 628 (Wyo. 2010) (“[T]he second compensable rule is a 

causation analysis . . . .”). We apply the second compensable injury rule in cases where 

the claimant’s injury “was precipitated by a single, identifiable incident,” and reject the 

application of Wyoming Statute § 27-14-603 (burden of proof for injuries occurring over

a substantial period of time) in such cases. Yenne-Tully, 12 P.3d at 172.6

[¶31] The hearing examiner had to decide whether the osteoarthritis in Mr. Little’s hip 

was causally related to the compensable injury he suffered in 1988. Mr. Little advanced 

two alternative but related theories of recovery. He contended that he either directly 

suffered a hip injury in the work accident, or that his osteoarthritis was a second 

compensable injury because it was caused by the need to compensate because of injury 

resulting from his original injury. The hearing examiner rejected both theories. He found 

 

6 The hearing examiner actually cited to two different legal standards in his final order: the second

compensable injury rule, and the higher burden of proof required under § 27-14-603 for an injury 

occurring over a substantial period of time. Mr. Little’s condition falls under the second compensable 

injury rule because there was “a definite triggering accident or event,” and § 27-14-603 was therefore 

inapplicable to this case. See Yenne-Tully, 12 P.3d at 172. However, the hearing examiner ultimately 

applied the correct legal standard when he held that the weight of the evidence failed to support a causal 

link between the hip condition and the original work injury. We therefore view any incidental 

misstatement of the law as harmless error. See W.R.A.P. 9.04 (reviewing court disregards any error, 

defect, irregularity or variance which does not affect substantial rights).
12

that the medical records did not support a direct theory of causation, and that Mr. Little

failed to prove that the arthritis in his hip was caused by overcompensation.

[¶32] Mr. Little argues that the hearing examiner’s application of the second 

compensable injury rule is contrary to the overwhelming weight of the evidence in the

record.7 He contends that Dr. Patel’s testimony and his own medical history established a

sufficient causal link between the original work injury and osteoarthritis caused by a

change in gait and overcompensation. Mr. Little also claims that the hearing examiner 

improperly relied upon Dr. Torkelson’s opinion that the osteoarthritis in his hip was 

unrelated to the 1988 accident. He argues that the examiner should have relied on his 

treating physician’s testimony as to the causation of the hip condition rather than Dr. 

Torkelson’s report. 

[¶33] In a contested case hearing for worker’s compensation benefits, the claimant bears 

the burden of proving all of the essential elements of the claim by a preponderance of the 

evidence, including proof of a causal connection between a work-related incident and his

injury. See, e.g., Jacobs, ¶ 11, 301 P.3d at 141 (citation omitted); Anastos v. Gen. Chem. 

Soda Ash, 2005 WY 122, ¶ 20, 120 P.3d 658, 666 (Wyo. 2005) (citation omitted); State 

ex rel. Wyo. Workers’ Safety & Comp. Div. v. Conner, 12 P.3d 707, 709 (Wyo. 2000) 

(citation omitted); 8 Larson, supra, § 130.06[3][b]. This is true whether a claimant is 

seeking recovery under a direct theory of causation or the second compensable injury 

rule. Hoffman, ¶ 9, 291 P.3d at 301. In order to receive benefits under the second 

compensable injury rule, Mr. Little therefore had to prove that his back injury caused or 

“ripened into” a hip condition requiring additional medical intervention. See id. at 302.

[¶34] The burden of proof consists of two elements, the burden of production and the 

burden of persuasion. Bando v. Clure Bros. Furniture, 980 P.2d 323, 330 (Wyo. 1999); 1 

Christoper B. Mueller & Laird C. Kirkpatrick, Federal Evidence §§ 3:4, 3:5 (3d ed.

2007). The burden of production is also known as “the burden of producing evidence or 

going forward with the evidence,” and it “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.” Joyner v. State, 2002 WY 174, ¶ 18, 58 P.3d. 331, 337 (Wyo. 

2002) (citation omitted); see also 1 Mueller and Kirkpatrick, supra, § 3:4. The burden of 

 

7 Little does not challenge the hearing examiner’s finding that his hip was not directly injured in the

workplace accident. We agree with the Division that we should not consider that aspect of the agency’s 

final order. See Ferrell v. Knighten, 2013 WY 37, ¶ 12, 298 P.3d 161, 163 (Wyo. 2013) (“Since Ultra 

failed in its opening brief to designate or argue the issue of the propriety of the holding by the district 

court that it contractually waived its right to seek judicial review of the arbitration award, the holding is 

uncontested.” (quoting Ultra Resources, Inc. v. McMurry Energy Co., 2004 WY 121, ¶ 13, 99 P.3d 959, 

964 (Wyo. 2004))); State v. Campbell Cnty. School Dist., 2001 WY 90, ¶ 35, 32 P.3d 325, 333 (Wyo.

2001) (“Under this court’s long-standing precedent, this court will not frame the issues for the litigants 

and will not consider issues not raised by them and not supported by cogent argument and authoritative

citation.”).
13

persuasion is “the burden of persuading the trier of fact that the alleged fact is true.” 2 

McCormick on Evidence § 336, at 664 (7th ed. 2013); see also Dir., Office of Workers’ 

Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 268, 114 S. Ct. 

2251, 2253, 129 L. Ed. 2d 221 (1994); Hansen v. State, 904 P.2d 811, 823-24 (Wyo.

1995); 1 Mueller and Kirkpatrick, supra, § 3:5.

[¶35] 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.” Anastos, ¶ 20, 120 P.3d at 666 (quoting Hall v. State ex rel. Wyo. Workers 

Comp. Div., 2001 WY 136, ¶ 16, 37 P.3d 373, 378 (Wyo. 2001)). “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.

[¶36] Dr. Patel testified that Mr. Little “was developing osteoarthritis . . . most

commonly probably related to his other previous injuries,” and that he “developed 

significant osteoarthritis, probably because of over-compensation from his previous 

injuries.” (Emphasis added.) Dr. Patel also testified that Mr. Little’s change in gait 

caused overuse of the right leg and osteoarthritis within a reasonable degree of medical

probability, and that he believed the right hip had been damaged from compensation for 

back pain over the years. Dr. Patel’s notes from February 2008 likewise indicated that 

Mr. Little “developed significant osteoarthritis, probably because of overcompensation.” 

(Emphasis added.) Mr. Little therefore produced sufficient evidence of causation to meet 

the burden of going forward as to his claim for benefits under the second compensable 

injury rule.

[¶37] Mr. Little also bore the burden of persuasion, i.e., the obligation to persuade the 

hearing examiner that his hip condition was in fact causally connected to his original 

back injury in the face of conflicting testimony. This can be a difficult burden to 

overcome in some instances: 

The finder of fact is not necessarily bound by the expert

medical testimony. . . . It is the hearing examiner’s

responsibility, as the trier of fact, to determine relevancy,

assign probative value and ascribe the relevant weight given 

to medical testimony. The hearing examiner is also in the 

best position to judge the weight to be given to the medical 

evidence. The trier of fact may disregard an expert opinion if 

he finds the opinion unreasonable or not adequately supported 

by the facts upon which the opinion is based.

In weighing the medical opinion testimony, the fact

finder considers: (1) the opinion; (2) the reasons, if any, given
14

for it; (3) the strength of it; and (4) the qualifications and

credibility of the witness or witnesses expressing it.

Demonstrating evidentiary contradictions in the record does

not establish the ruling was irrational, but we do examine

conflicting evidence to determine if the agency reasonably

could have made its finding and order based upon all of the

evidence before it.

Anastos, ¶ 20, 120 P.3d at 666 (citations omitted) (internal quotation marks omitted). See 

also Casper Iron & Metal, Inc. v. Unemp’t Ins. Comm’n, 845 P.2d 387, 393 (Wyo. 1993) 

(“[I]f the party with the burden of persuasion has not sustained it by a fair preponderance 

of the evidence—if the evidence is in equipoise or the opposing party’s preponderates—

the party with the burden must fail.” (quoting 1 D. Louisell & C. Mueller, Federal 

Evidence § 66 (1977))).

[¶38] The record contains conflicting evidence as to causation. Some conflict can be 

found within Dr. Patel’s deposition. As we have already observed, his testimony satisfied 

Mr. Little’s burden of producing evidence which could have supported a decision in his 

favor. However, as the hearing examiner pointed out, Dr. Patel weakened that opinion 

with the repeated use of qualifying language like “I think,” and “possibly.” Dr. Patel is 

an internist, meaning that he treats arthritic joints as part of his general practice, and he 

does not specialize in diagnosis and treatment of diseases, injury, or degeneration of the 

body’s skeletal system or perform surgery to correct these conditions, as orthopedic 

surgeons do. 

[¶39] On the other hand, Dr. Torkelson’s report indicates that there was no connection 

between the work injury and the arthritic hip joint. Dr. Torkelson is an orthopedic 

surgeon who specializes in treatment of musculo-skeletal problems and performs surgical 

procedures such as hip replacements. Dr. Patel acknowledged that an orthopedic surgeon 

would be better equipped to answer questions about the general timeline and risk factors 

involved with arthritis. Dr. Torkelson’s report did just that, concluding that 

“[o]steoarthritis in a person of [Mr. Little’s] age is not unusual in the absence of any 

injury.” He also noted “no evidence of diagnosis of osteoarthritis of his hips at any time 

during multiple physician visits from 1988 to 2007.” The hearing examiner was entitled 

to believe Dr. Torkelson over Dr. Patel, because Dr. Patel was less qualified to testify 

about the onset of arthritis by his own admission, and because Dr. Patel diluted his 

testimony by the use of qualifying language.

[¶40] The hearing examiner was also entitled to discount Mr. Little’s testimony that the 

onset of his hip condition was much earlier. The medical records indicate that he had 

complaints of right leg pain as early as December of 1988. However, these reports are 

undercut by repeated findings of exaggerated responses and symptom magnification. 

Also, as Dr. Torkelson pointed out, nearly twenty years transpired between the original
15

accident and the diagnosis of hip osteoarthritis. Substantial evidence supports the hearing 

examiner’s decision that Mr. Little failed to prove a causal link between his original work 

injury and the onset of the osteoarthritis in his hip.

CONCLUSION

[¶41] Mr. Little met his burden of producing competent evidence to demonstrate a 

causal link between his compensable work injury and the arthritis in his hip nearly twenty 

years later. However, he failed to carry the burden of persuasion because the hearing 

examiner chose to believe the report of an orthopedic surgeon, which found no causal 

link between the original injury and the arthritis in his hip. Substantial evidence supports 

the hearing examiner’s findings. Affirmed.