IN THE SUPREME COURT, STATE OF WYOMING 

2022 WY 123 

APRIL TERM, A.D. 2022 

 September 29, 2022 

ROBERT GENNER, 

Appellant 

(Petitioner), 

v. 

STATE OF WYOMING, ex rel. 

DEPARTMENT OF WORKFORCE 

SERVICES, WORKERS’ 

COMPENSATION DIVISION, 

Appellee 

(Respondent).

 S-22-0012 

Appeal from the District Court of Fremont County 

The Honorable Jason M. Conder, Judge 

Representing Appellant: 

 Benjamin J. Sherman, Olsen Legal Group, LLC, Cheyenne, Wyoming.

Representing Appellee: 

Bridget Hill, Wyoming Attorney General; Mark Klaassen, Deputy Attorney 

General; Peter F. 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 typographical or other formal errors so correction may be made before final 

publication in the permanent volume. 
1 

KAUTZ, Justice. 

[¶1] The Wyoming Workers’ Compensation Division (Division) denied Robert Genner’s 

request for permanent total disability (PTD) benefits for a 2002 work-related back injury 

which, he claimed, made him unemployable. The Medical Commission Hearing Panel 

(Medical Commission) upheld the Division’s denial, concluding Mr. Genner did not prove 

the workplace injury caused his inability to work. The district court found substantial 

evidence in the record to support the Medical Commission’s decision. We affirm. 

ISSUE 

[¶2] We restate the dispositive issue in this case as: Was the Medical Commission’s 

denial of Mr. Genner’s PTD claim supported by substantial evidence and in accordance 

with the law? 

FACTS 

[¶3] Mr. Genner moved to Dubois in the mid-1980s. In 2002, he was working in Jackson 

as a heating, ventilation, and air conditioning (HVAC) technician for Delcon, Inc. when he 

injured his back lifting a container of glycol into a truck. The emergency room physician 

who evaluated Mr. Genner the day after the accident diagnosed a lumbar strain. A followup MRI showed Mr. Genner had narrowing of the disc space at the L4-L5 vertebral level 

(where he had previously undergone a laminectomy and fusion) and at the L2-L3 vertebral 

level. The Division approved worker’s compensation coverage for the 2002 back injury, 

and he was treated with three steroid injections. 

[¶4] A year later, Geoffrey Skene, D.O., determined Mr. Genner’s workplace injury 

resulted in a 5% permanent partial impairment (PPI) of his whole body. The Division 

accepted the rating and awarded him PPI benefits. See Wyo. Stat. Ann. § 27-14-102(a)(ii) 

(LexisNexis 2021) (an employee suffers a PPI when a workplace injury leaves him with a 

physical impairment and his condition “will not substantially improve or deteriorate”); 

Wyo. Stat. Ann. § 27-14-405(f) (LexisNexis 2021) (authorizing payment of PPI benefits). 

Mr. Genner then applied for permanent partial disability (PPD) benefits to compensate him 

for his loss of earning capacity from the PPI. See § 27-14-102(a)(xv) (PPD means the 

“economic loss to an injured employee” from a PPI); § 27-14-405(h) (authorizing payment 

of PPD benefits). In his PPD application, Mr. Genner stated that, because of the workplace 

injury, Dr. Skene had restricted him to lifting a maximum of 20 pounds. 

[¶5] Due to the lifting restriction, Mr. Genner was unable to continue working for 

Delcon. He was employed briefly at a hardware store in Jackson and as a maintenance 

worker for Jackson Hole Aviation. In 2004, he began work as a firefighter and airport 

technician for the Jackson Hole Airport Authority. To keep his job, he was required to 
2 

pass a vigorous physical fitness test each year. He retired from the airport in 2014 at the 

age of 72 and did not work thereafter. 

[¶6] The record does not show Mr. Genner received any medical treatment for his back 

injury from 2004 until 2008. From 2008 through 2010, Mr. Genner was treated for “severe 

on and off” low back pain with prescription anti-inflammatories, a muscle relaxant, and, 

on occasion, opioids. An MRI performed in 2013 showed significant degenerative disc 

disease in Mr. Genner’s lumbar spine. Orthopedic surgeon, Joshua Beck, M.D., stated in 

records from that time that Mr. Genner’s low back pain was “related” to his 2002 worker’s 

compensation injury and recommended surgery to decompress and fuse “L2 to L5.” 

Michael Kaplan, M.D., reviewed Mr. Genner’s medical records at the Division’s request 

and confirmed the surgery was “appropriate,” but Dr. Kaplan could not say whether it was 

“directly related” to the 2002 work injury. The Division, nevertheless, covered the 2014 

surgery. 

[¶7] Mr. Genner continued to experience back pain and had a decompression and spinal 

fusion at the L1-L2 vertebral level in 2016 which, again, was covered by the Division. 

After that surgery, Mr. Genner’s condition improved for a few months. He reported to his 

physician that he was having “minimal to no back pain” and was not taking pain 

medication. However, his back pain returned later in the year after he went hunting. In 

2017, with the Division’s approval, Mr. Genner had a dorsal spinal cord stimulator 

implanted in his back to relieve pain. 

[¶8] Mr. Genner’s treating pain physician, Jed Shay, M.D., provided an updated PPI 

rating in 2017. Dr. Shay reported Mr. Genner suffered from “chronic pain syndrome post 

lumbar stenosis at multiple levels with fusion from L1-S1 with neurogenic claudication 

[pain caused by a decrease in blood flow]” and calculated a 17% whole body permanent 

impairment. The Division approved Dr. Shay’s 17% impairment rating in July 2017 and 

awarded Mr. Genner additional PPI and PPD benefits. 

[¶9] A few months after receiving the PPI and PPD awards, Mr. Genner applied for PTD 

benefits, claiming he was unable to work because he was in chronic pain, could not “lift, 

bend, twist . . . [or] reach,” and was taking opioid medication. Despite his advanced age, 

Mr. Genner maintained he retired in 2014 only because, as a result of the workplace injury, 

he could no longer physically perform his duties. Dr. Shay provided a disability 

certification in support of Mr. Genner’s PTD application. 

[¶10] The Division denied Mr. Genner’s application for PTD benefits. He objected to the 

determination, and the Division referred the matter to the Medical Commission for a 

contested case hearing. Mr. Genner asserted at the hearing that he was entitled to PTD 

benefits under the “odd lot” doctrine, which applies to injured workers who are not 

“‘altogether incapacitated for work [but are] so handicapped they will not be employed 

regularly in any well[-]known branch of the labor market.’” In re Pickens, 2006 WY 54, 
3 

¶ 13, 134 P.3d 1231, 1235 (Wyo. 2006) (quoting Schepanovich v. U.S. Steel Corp., 669 

P.2d 522, 525 (Wyo. 1983)) (other citations omitted). Mr. Genner was the only witness to 

testify at the hearing, but the Medical Commission considered deposition testimony from 

Dr. Shay and Margot Burns, a vocational expert who evaluated Mr. Genner in 2019 to 

determine his employability. It also considered the exhibits offered by Mr. Genner, 

including various medical records and reports, worker’s compensation documents, and Ms. 

Burns’ vocational evaluation. 

[¶11] The Medical Commission upheld the Division’s denial of PTD benefits to Mr. 

Genner. It generally concluded Mr. Genner had not presented a prima facie case for PTD 

benefits under the odd lot doctrine because he did not show: 1) his 2002 workplace injury 

caused his inability to work; or 2) a lack of suitable work in his community. Mr. Genner 

petitioned the district court for review of the Medical Commission’s decision, and that 

court affirmed. He filed a timely notice of appeal. 

 

DISCUSSION 

[¶12] Mr. Genner claims the Medical Commission incorrectly determined he did not meet 

his burden of proving he was entitled to PTD benefits under the odd lot doctrine. We 

examine the case as if it came directly from the Medical Commission and give no deference 

to the district court’s decision affirming the agency decision. Morris v. State ex rel. Dep’t 

of Workforce Servs., Workers’ Comp. Div., 2017 WY 119, ¶ 23, 403 P.3d 980, 986 (Wyo. 

2017) (when an appeal is taken from a district court’s decision on a petition for review of 

an administrative action, we examine the case as if it came directly from the agency (citing 

Guerrero v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2015 WY 88, ¶ 

11, 352 P.3d 262, 265 (Wyo. 2015), and Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 

188 P.3d 554, 557 (Wyo. 2008))). 

[¶13] Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2021) governs judicial review of 

administrative agency decisions: 

(c) To the extent necessary to make a decision and when 

presented, the reviewing court shall decide all relevant 

questions of law, interpret constitutional and statutory 

provisions, and determine the meaning or applicability of the 

terms of an agency action. In making the following 

determinations, the court shall review the whole record or 

those parts of it cited by a party and due account shall be taken 

of the rule of prejudicial error. The reviewing court shall: 

(i) Compel agency action unlawfully withheld or 

unreasonably delayed; and 

(ii) Hold unlawful and set agency action, findings and 

conclusions found to be: 
4 

(A) Arbitrary, capricious, an abuse of discretion or 

otherwise not in accordance with law; 

(B) Contrary to constitutional right, power, 

privilege or immunity; 

(C) In excess of statutory jurisdiction, authority or 

limitations or lacking statutory right; 

(D) Without observance of procedure required by 

law; or 

(E) Unsupported by substantial evidence in a case 

reviewed on the record of an agency hearing provided by 

statute. 

In accordance with § 16-3-114(c)(ii), we review the agency’s findings of fact by applying 

the substantial evidence standard. Dale, ¶ 21, 188 P.3d at 561 (the only evidentiary 

standard of review in § 16-3-114(c)(ii) is the substantial evidence standard). “Substantial 

evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Guerrero, ¶ 12, 352 P.3d at 266 (quoting Bush v. State ex rel. Wyo. 

Workers’ Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo. 2005)). 

 

[¶14] The claimant has the burden of proving all the essential elements of his worker’s 

compensation claim by a preponderance of the evidence. Phillips v. TIC-The Indus. Co. of 

Wyo., Inc., 2005 WY 40, ¶ 25, 109 P.3d 520, 531 (Wyo. 2005). 

If the hearing examiner determines that the burdened party 

failed to meet his burden of proof, we will decide whether there 

is substantial evidence to support the agency’s decision to 

reject the evidence offered by the burdened party by 

considering whether that conclusion was contrary to the 

overwhelming weight of the evidence in the record as a whole. 

If, in the course of its decision making process, the agency 

disregards certain evidence and explains its reasons for doing 

so based upon determinations of credibility or other factors 

contained in the record, its decision will be sustainable under 

the substantial evidence test. Importantly, our review of any 

particular decision turns not on whether we agree with the 

outcome, but on whether the agency could reasonably conclude 

as it did, based on all the evidence before it. 

 

Dale, ¶ 22, 188 P.3d at 561 (citations omitted). “We review an agency’s conclusions of 

law de novo[] and will affirm only if the agency’s conclusions are in accordance with the 

law.” Middlemass v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 118, ¶ 

13, 259 P.3d 1161, 1164 (Wyo. 2011) (citations and quotation marks omitted). 
5 

[¶15] “Permanent total disability” is defined in the Wyoming Worker’s Compensation Act 

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[.]” Section 

27-14-102(a)(xvi). Wyo. Stat. Ann. § 27-14-406(a) (LexisNexis 2021) authorizes payment 

of PTD benefits after “certification by a physician” that the workplace injury caused the 

claimant’s PTD. 

[¶16] A claimant may qualify for PTD benefits under the odd lot doctrine. Hart v. State 

ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2018 WY 105, ¶ 21, 442 P.3d 653, 

660 (Wyo. 2018). See also, Ross v. State ex rel. Dep’t of Workforce Servs., Workers’ 

Comp. Div., 2022 WY 11, ¶ 20, 503 P.3d 23, 30 (Wyo. 2022) (the “statutory definition of 

permanent total disability is consistent with the odd lot doctrine” (citing Schepanovich, 669 

P.2d at 525)). The odd lot doctrine allows PTD benefits for a claimant, who, although not 

entirely incapacitated, is de facto unemployable due to his disability and other factors. 

Hart, ¶ 21, 442 P.3d at 660 (citing Pickens, ¶ 14, 134 P.3d at 1236). The claimant “must 

demonstrate that []he is incapacitated ‘from performing any work at any gainful occupation 

for which []he is reasonably suited by experience and training.’” Ross, ¶ 20, 503 P.3d at 

30 (quoting Schepanovich, 669 P.2d at 528) (other citations omitted). To qualify for PTD 

benefits under the odd lot doctrine, 

a claimant must make a prima facie showing that “(1) he is no 

longer capable of working at the job in which he was employed 

at the time of his injury, 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.” 

 

Hart, ¶ 21, 442 P.3d at 660 (quoting Pickens, ¶ 14, 134 P.3d at 1236) (other citations and 

quotation marks omitted). After the claimant makes his prima facie case, “the burden shifts 

to the Division ‘to show that light work of a special nature which the claimant could 

perform is available.’” Id. The question of whether the claimant has presented evidence 

to establish a prima facie case for PTD benefits under the odd lot doctrine “‘is a factual 

one for the agency to determine.’” Stallman v. State ex rel. Wyo. Workers’ Safety & Comp. 

Div., 2013 WY 28, ¶ 27, 297 P.3d 82, 89 (Wyo. 2013) (quoting Moss v. State ex rel. Wyo. 

Workers’ Safety & Comp. Div., 2010 WY 66, ¶¶ 9-11, 232 P.3d 1, 4 (Wyo. 2010)) (other 

citations omitted). 

[¶17] As part of the first factor in his prima facie case, “the claimant must demonstrate a 

causal connection between a compensable workplace injury and [his] inability to work at 

the job he held at the time of the injury.” Hart, ¶ 21, 442 P.3d at 660 (citing Pickens, ¶ 30, 

134 P.3d at 1240-41). The claimant’s workplace injury, rather than unrelated injuries or 

medical conditions, must have “caused the claimant’s inability to work.” Pickens, ¶ 16, 
6 

134 P.3d at 1237. “Whether a causal connection exists is a question of fact.” In re Lysne, 

2018 WY 107, ¶ 30, 426 P.3d 290, 298 (Wyo. 2018). 

[¶18] The Medical Commission concluded Mr. Genner had not carried his burden of 

proving his 2002 injury caused his inability to work. Noting Mr. Genner was 77 years old 

at the time of the hearing, the Medical Commission stated he “must provide the [Medical 

Commission] with some evidence that his 2002 workplace injury has caused or contributed 

to his inability to return to work (rather than the effects of aging and the strenuous jobs 

[Mr.] Genner worked from 2003 until 2014).” The Medical Commission determined 

expert medical evidence was necessary to establish causation, and Mr. Genner failed to 

provide such evidence through Dr. Shay’s testimony. The Medical Commission’s decision 

stated: 

57. Dr. Shay’s deposition testimony does not link the 

2002 injury to [Mr.] Genner’s subsequent surgeries in 2014-

2016. Dr. Shay testified only that [Mr.] Genner “reinjured his 

back” in 2002 and “subsequently underwent . . . four additional 

back surgeries.” This is not medical testimony on causation, 

especially given [Mr.] Genner’s preexisting spinal injury. . . . 

58. [Mr.] Genner noted at the . . . hearing that the 

Division paid for his spinal treatment from 2013 through 2018. 

This is not proof of causation. The [Medical Commission] has 

not identified anywhere that the Division stipulated to 

causation, and “an uncontested Division determination, either 

awarding or denying benefits, will not be given preclusive 

effect with respect to future determinations and objections.” 

Porter [v. State ex rel. Dep’t of Workforce Servs., Workers’ 

Comp. Div., 2017 WY 69,] ¶ 16, 396 P.3d [999,] 1005 [(Wyo. 

2017)]. . . . 

59. This does not mean the [Medical Commission] 

does not believe that [Mr.] Genner suffers from lower back 

pain. Rather, the [Medical Commission] lacks evidence that 

[Mr.] Genner’s current spinal pain and spinal degeneration is 

caused, in any way, by his 2002 injury. [Mr.] Genner’s pain 

[and] spinal deterioration could result from his advanced age 

and the seventeen years of life that followed his 2002 injury. . 

. . 

 60. . . . In 2002, [Mr.] Genner was sixty-one years 

old, and he had a history of spinal fragility. Despite this, Dr. 

Shay’s report indicates that [Mr.] Genner was, at the end of 

2003, pain-free. [Mr.] Genner was, however, under a 

restriction that he [could] not lift more than twenty pounds in 

order to avoid further irritation to his fragile spine. Indeed, this 
7 

restriction appears to have been part of the basis for [Mr.] 

Genner’s 5% permanent impairment in 200[3]. [Mr.] Genner 

did not follow this restriction. Instead, he worked a strenuous 

physical job for “more money.” At Jackson Hole Airport, 

[Mr.] Genner worked as a firefighter and as an airport 

operations officer for ten years, where the certification for his 

position required him to lift weight that greatly exceeded his 

medical limits. 

[¶19] Expert medical evidence is typically required for a claimant to meet his obligation 

of proving causation unless the injury or condition is “‘immediately and directly or 

naturally and probably’ the result of the workplace incident.” Guerrero, ¶ 25, 352 P.3d at 

270 (quoting Thornberg v. State ex rel. Wyo. Workers’ Comp. Div., 913 P.2d 863, 867 

(Wyo. 1996)) (other citations and quotation marks omitted). “We have required medical 

evidence to establish causation when a significant amount of time elapses between the 

initial workplace injury and the claim, when there is an intervening injury, when there is a 

preexisting condition, or when the claimant’s symptoms and medical history are complex.” 

Lysne, ¶ 18, 426 P.3d at 296. Given many of these circumstances apply to Mr. Genner, the 

Medical Commission correctly required him to present expert medical evidence on 

causation. 

[¶20] Even though Mr. Genner apparently does not dispute the Medical Commission’s 

finding that Dr. Shay did not testify directly about the causation issue, he claims Dr. Shay’s 

report accompanying the 2017 impairment rating demonstrates the requisite causal link. 

Dr. Shay recounted Mr. Genner’s lower back treatment after the 2002 workplace injury, 

and Mr. Genner asserts those records establish he was “forced to retire due to the 

progression of his injury.” 

[¶21] The agency record contains substantial evidence supporting the Medical 

Commission’s conclusion that Mr. Genner did not prove a causal link between his 2002 

workplace injury and his inability to work. As the Medical Commission correctly 

observed, Mr. Genner’s ongoing back issues could have been caused by a variety of factors, 

including his pre-existing back condition, his strenuous post-injury work in disregard of 

the 20-pound lifting restriction, and/or the natural aging process. The evidence showed 

Mr. Genner had a significant preexisting back condition which required surgery in 1997. 

By comparison, the 2002 injury was a minor lumbar strain, requiring only three steroid 

injections before his pain resolved, and he was “back at work light duty without back 

complaints” within three months. Furthermore, there is no specific evidence he received 

medical treatment for his back injury from 2004 until 2008. Although Dr. Shay’s report 

stated vaguely that Mr. Genner underwent physical therapy on his lumbar spine from 2002 

through 2017, no other details were provided. 
8 

[¶22] As the Medical Commission noted, the evidence of Mr. Genner’s strenuous postinjury work activities is compelling proof the 2002 injury did not cause his inability to 

work. He described the annual recertification test he was required to pass when working 

as a firefighter for the Jackson Hole Airport from 2004-2014. 

Q. I want to make sure I understand exactly what 

people had to do to pass that test. 

A. . . . It was a seven-minute test. . . . We had to 

completely suit up in complete fire gear of our helmet, coat, 

pants, boots, and an air pack. . . . We would leave the floor of 

our firehouse . . . [and go] down a flight of steps that was 

approximately one story . . . into the basement. . . . They had 

an iron beam that we had to drive approximately 10 feet with a 

big rubber maul-type hammer. . . . Leave that, go out the back 

entrance of the basement[] -- up to the top of the stairs, around 

onto the tarmac of the airport, back in the firehouse, back down 

the stairs, make two trips with that. 

Let me back up . . . . After we drove the beam, we had 

to pick up a 50-foot section of 2-and-a-half-inch firehose and 

throw it over our shoulder. . . . Then after we made the two 

laps, we would go back up onto the tarmac. We had a fire 

hydrant in the corner of the firehouse. We would advance an 

engine three-quarters-inch hand line a hundred feet, . . . open 

the nozzle, show the water, set the nozzle down, proceed 

another 50 feet, pick up the 165-pound . . . Rescue Randy 

Mannequin and . . . carry [it], drag [it], whatever way we could 

– back to the starting line where we started with the engine 

three-quarters-inch hand line. 

Mr. Genner explained the rubber hammer he used to move the iron beam weighed 

10 pounds, the firefighting gear weighed 35 pounds, and the 50-foot section of 

firehose he carried while running the two laps weighed 45-50 pounds. Mr. Genner 

told Ms. Burns, the vocational evaluator who testified on his behalf, that the 

firefighter job “‘broke [him] down’ but he kept working because he had to earn an 

income to support his family and he did not have comparable opportunities for 

employment in Dubois.” 

[¶23] Mr. Genner claims the Medical Commission’s causation finding was not 

supported by substantial evidence because it disregarded Dr. Beck’s 2013 note, 

which stated Mr. Genner’s back condition was “related to a worker’s compensation 

injury from 2002.” The Medical Commission addressed the note, stating it did not 

“find this entry reflects an expert opinion on causation. No additional supporting 
9 

analysis appears, and the statement can just as easily be read as a summary of [Mr.] 

Genner’s statements to Dr. Beck.” 

[¶24] As we explained above, if “in the course of its decision[-]making process, 

the agency disregards certain evidence and explains its reasons for doing so based 

upon determinations of credibility or other factors contained in the record,” the 

decision is sustainable under the substantial evidence test. Dale, ¶ 22, 188 P.3d at 

561. The Medical Commission’s decision to disregard this single unexplained 

medical note was reasonable. The hearing evidence described above did not show 

the condition that led to Mr. Genner’s retirement in 2014 or his inability to work 

when he applied for PTD benefits in 2018 was caused by his 2002 workplace injury. 

Furthermore, as the Medical Commission correctly recognized, the Division was 

not collaterally estopped from denying his PTD claim by its undisputed prior 

approvals of Mr. Genner’s medical treatment and disability claims. See Porter, ¶ 

16, 396 P.3d at 1005 (“an uncontested Division determination, either awarding or 

denying benefits, will not be given preclusive effect with respect to future 

determinations and objections”). See also, Ross, ¶ 6 n.1, 503 P.3d at 27 n.1 (“We 

note that the Division is not estopped from denying benefits for an injury that it 

previously covered.”) (citations omitted). 

[¶25] Because Mr. Genner did not satisfy his burden of establishing the first factor of the 

odd lot doctrine, we need not address the second factor. See, e.g., Ross, ¶ 23, 503 P.3d at 

31 (“Having found that [the claimant] did not meet the first odd lot prong, we do not address 

the second prong.”); Pickens, ¶ 32, 134 P.3d at 1241 (“Because the claimant failed to meet 

his initial burden of proving that his work-related injury disabled him from continuing in 

his previous employment, his claim for benefits under the odd lot doctrine was properly 

denied by the Commission.”). 

CONCLUSION 

[¶26] The Medical Commission’s decision that Mr. Genner did not prove the 2002 

workplace injury caused his disability was supported by substantial evidence. He was not 

entitled to PTD benefits under the odd lot doctrine. 

[¶27] Affirmed.