IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 95

APRIL TERM, A.D. 2013

August 12, 2013

IN THE MATTER OF THE 

WORKER’S COMPENSATION

CLAIM OF:

KRISTI LEAVITT,

Appellant

(Petitioner),

v.

STATE OF WYOMING ex rel.

WYOMING WORKERS’ SAFETY

AND COMPENSATION DIVISION,

Appellee

(Respondent).

S-12-0234

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge 

Representing Appellant:

Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming

Representing Appellee:

Gregory A. Phillips, Wyoming Attorney General; Michael Finn, Senior Assistant 

Attorney General; Jackson M. Engels, 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.
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DAVIS, Justice.

[¶1] Appellant Kristi Leavitt experienced lower back pain after shoveling snow just

before Christmas of 2009. She filed a claim for benefits with the Wyoming Workers’ 

Safety and Compensation Division, contending that her pain was causally related to a 

compensable back injury she had suffered in 1996. The Division denied the claim, and 

the Office of Administrative Hearings (OAH) upheld that decision after holding a 

contested case hearing. The district court for the First Judicial District affirmed the OAH 

ruling. We affirm the district court.

ISSUES

[¶2] Leavitt raises four issues which we reorder and restate as follows:

1. Was the OAH decision contrary to law?

2. Did the hearing examiner act arbitrarily and capriciously

or abuse his discretion?

3. Were the hearing examiner’s findings of fact sufficient?

4. Was the OAH decision supported by substantial evidence?

FACTS

[¶3] While working as a public information officer for the State of Wyoming’s tourism 

office in February of 1996, Leavitt escorted ten journalists to various stops along the 

route of a ten-day dogsled race in western Wyoming. The trip required her to drive 

approximately 2,000 miles and to load and unload her passengers’ heavy winter luggage 

at eight or nine hotels along the route. Midway through the trip, Leavitt began to 

experience unrelenting back pain. 

[¶4] When she returned to Cheyenne, she sought chiropractic care for her pain. After 

approximately a week of unsuccessful treatment, Leavitt’s chiropractor referred her to 

Dr. Vincent Ross, a family practitioner with a certificate of additional qualification in 

sports medicine. Dr. Ross provided pain medication and physical therapy. Conservative 

treatment by both practitioners provided Leavitt little relief, and an MRI was ordered. 

The study revealed a herniated disc at the L5-S1 level of the lower back. Dr. Carlton 

Reckling, an orthopedic surgeon, performed a partial discectomy (disc removal) and 

decompression on March 20, 1996. 

[¶5] After recuperating from the surgery, Leavitt began a roughly nine-month course of 

post-operative rehabilitation managed by Dr. Ross and provided by his office. She
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experienced marked gains in strength and flexibility, as well as a marked decrease in pain

and discomfort. She was soon able to adequately control her pain with Ibuprofen, even

though her job duties required her to fly frequently and to travel long distances by 

automobile. Dr. Ross’ post-surgical care of Leavitt ended on February 24, 1997. 

[¶6] Leavitt’s back required little medical attention between 1997 and 2010. She saw 

Dr. Ross in August of 1999 for treatment of a primary complaint unrelated to her back 

injury. Dr. Ross’ chart for this visit is not in the record, but there is a note from Leavitt to 

the Division with a copy of another note written by Dr. Ross on a prescription form. Dr. 

Ross’ note indicates that Leavitt had some low back pain on the date of the visit and 

needed pain medication. Leavitt’s note says that Dr. Ross would not be sending a bill to 

the Division because he was not treating her for her back during the visit in question, but 

that she would like to be reimbursed for the cost of prescription Celebrex (a non-steroidal 

anti-inflammatory drug used to treat osteoarthritis) and Ibuprofen based on his conclusion 

that she needed pain medications. 

[¶7] In 2001, Leavitt saw physical medicine and pain management specialist Dr. John 

Vallin in Bozeman, Montana. Dr. Vallin noted that Leavitt’s gait was non-antalgic (the 

stance phase of her gait was not abnormally short compared to the swing phase), that her 

lumbar range of motion was within normal limits, and that she had excellent overall 

spinal range of motion. He found early spondylosis (degenerative osteoarthritis in the 

joints or neuroforamina of the spine) with some bone spurring at the fifth and what 

appeared to be sacralization of the sixth lumbar vertebrae. This was the area in which the 

1996 surgery had been performed. 

[¶8] Dr. Vallin prescribed or renewed a prescription for Celebrex, and diagnosed 

Leavitt with chronic mechanical low back pain without lumbar radiculopathy 

(compression of spinal nerves). The bills for the 1999 and 2001 care by Drs. Ross and 

Vallin were the last Leavitt submitted to the Division until early in 2010. 

[¶9] Leavitt consulted with chiropractors from April of 2007 through early December 

of 2009. Her complaints during this time related to popping in her left hip after sitting for 

long periods, achy joints that run in her family, periodic migraines, bilateral lower back 

stiffness, pain in the lower ball of her left foot, tightness between her shoulder blades, 

temporomandibular joint (jaw) pain, right elbow pain, right shoulder pain, lower back 

catching when bending over, bilateral pain in the buttocks and a knot in her right 

shoulder. She saw one chiropractor for complaints related to miscarriages as well as a 

variety of complaints similar to those just listed. Although according to the chiropractic 

records Leavitt did complain of some back pain during this time frame, she did not relate 

her back complaints to the 1996 work-related injury, and did not submit any of the bills 

for the treatment rendered to the Division. 
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[¶10] Dr. Ross continued to see Leavitt between 2005 and 2009. She was treated for

knee complaints related to a cyst under a kneecap, for a ganglion cyst in the wrist, for a

sore throat and cough, and for chondromalacia (inflammation of the underside of the

kneecap) and arthritis in both knees. Although the medical records for the treatment

rendered during this time frame are not in the administrative record, Dr. Ross’ deposition 

testimony does not reflect any complaints of back pain during these visits. 

[¶11] Leavitt began to experience significant lower back pain after shoveling snow on 

December 22, 2009, and she therefore made an appointment with Dr. Ross on December 

31 of that year. On examination, he found spasm in the lumbar area and diagnosed a 

lumbar strain. His records reflect his conclusion that Leavitt’s pain at the time was just a 

“continuation” of her 1996 injury rather than the result of shoveling snow. Dr. Ross’s 

notes for that visit do not indicate that the pain began when Leavitt was shoveling snow, 

although they indicate that her chief complaint was that she had “reaggravated” her back. 

Dr. Ross did not order any radiographic studies. Leavitt was subsequently treated with 

physical therapy provided by a therapist employed by Dr. Ross’ office, and she also 

received some chiropractic treatment. 

[¶12] Leavitt attempted to reopen her 1996 worker’s compensation case to obtain 

payment for treatment of her recent back pain. The Division declined to reopen the case 

and denied her claim for benefits under Wyo. Stat. Ann. § 27-14-605 (LexisNexis 2013) 

because more than four years had elapsed since she last sought benefits for her 1996 

injury, and because she had failed to show that her current “lumbar sprain and muscle 

spasm due to shoveling snow” was directly related to the 1996 injury. Leavitt timely 

requested and received a hearing before the Office of Administrative Hearings. 

[¶13] The hearing examiner assigned by the OAH received Leavitt’s testimony, medical 

records selected by the parties, and Dr. Ross’ testimony by deposition. He found that

Leavitt’s original injury involved orthopedic and/or neurological issues, and he noted that 

Dr. Ross’ credentials did not include expertise in those specialties The examiner found it 

significant that Dr. Ross did not seem to be aware of Leavitt’s extensive history of 

chiropractic treatment between her recovery from the work-related injury and the snowshoveling incident, and that few complaints of back pain were reflected in that record. 

He also noted that Dr. Ross had not treated Leavitt for back pain between 1999 and the 

end of 2009. The hearing examiner observed that Dr. Ross ordered no objective 

diagnostic tests to isolate the source of Leavitt’s back pain after the snow-shoveling 

incident. He also found Dr. Ross’ testimony to be generally equivocal and unresponsive.

[¶14] The examiner determined that the record contained evidence of other causes of 

back pain besides aggravation of the original compensable injury. He concluded that the 

medical testimony established that arthritis not shown to be related to the original 

compensable injury may have played a role, and that shoveling snow often results in back 

pain even in those without any significant back problems. He found that Dr. Ross was
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speculating when he opined that Leavitt’s current back problems were related to her

compensable workplace injury in 1996 based upon the absence of any meaningful

diagnostic information and the absence of testimony which ruled out possible alternative

causes.

[¶15] The hearing examiner ultimately concluded that Leavitt had not carried her burden 

of proving by a preponderance of the evidence that the pain experienced after shoveling 

snow in 2009 was causally related to the thirteen-year-old injury. He therefore upheld 

the Division’s denial of benefits. 

[¶16] Leavitt then petitioned the district court for review of the OAH decision. 

Although that court took issue with some of the hearing examiner’s findings relating to 

Dr. Ross’ credibility, it concluded that his decision to disregard much of Dr. Ross’ 

medical testimony was supported by the record. The court also found that there was 

substantial evidence to support the conclusion that the doctor’s opinion regarding the 

relationship between Leavitt’s 1996 injury and her most recent complaints was not only 

equivocal and speculative, but that it also rested in part on his lack of familiarity with a 

considerable portion of her medical history. Leavitt timely appealed the district court’s 

decision.

STANDARD OF REVIEW

[¶17] In an appeal from a district court’s review of an administrative decision, this Court 

reviews the case as if it had come directly from the administrative body, affording no

special deference to the district court’s decision. Stallman v. State ex rel. Wyo. Workers’ 

Safety & Comp. Div., 2013 WY 28, ¶ 27, 297 P.3d 82, 89 (Wyo. 2013); Deloge v. State 

ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 154, ¶ 5, 264 P.3d 28, 30 (Wyo. 

2011). In accordance with Wyo. Stat. Ann. § 16-3-114(c)(ii)(E) (LexisNexis 2013), we 

review an agency’s findings of fact by applying the substantial evidence standard. 

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

137, 141 (Wyo. 2013); Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 

561 (Wyo. 2008). Substantial evidence is relevant evidence that a reasonable mind might 

accept as adequate to support a conclusion. Jacobs, ¶ 8, 301 P.3d at 141; Bush v. State ex 

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

of fact are supported by substantial evidence if, from the evidence preserved in the 

record, we can discern a rational premise for those findings.” Kenyon v. State ex rel. 

Wyo. Workers’ Safety & Comp. Div., 2011 WY 14, ¶ 11, 247 P.3d 845, 849 (Wyo. 2011). 

[¶18] Where a hearing examiner determines that a claimant has failed to carry her 

burden of proof, this Court must decide whether that determination was contrary to the 

overwhelming weight of the evidence. Jacobs, ¶ 8, 301 P.3d at 141; Hoffman v. State ex 

rel. Wyo. Workers’ Safety & Comp. Div., 2012 WY 164, ¶ 7, 291 P.3d 297, 301 (Wyo. 

2012). We defer to the agency’s (or the hearing examiner’s) determination of witness
5

credibility unless it is clearly contrary to the overwhelming weight of the evidence.

Willey v. State ex rel. Wyoming 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)).

[¶19] We apply the arbitrary and capricious standard of review as a “safety net” to catch 

agency action which prejudices a party’s substantial rights or is contrary to other 

standards of review under Wyoming’s Administrative Procedures Act, but which is not 

easily categorized or subject to a particular standard. Jacobs, ¶ 9, 301 P.3d at 141. “The 

arbitrary and capricious standard applies if the agency failed to admit testimony or other 

evidence that was clearly admissible, or failed to provide appropriate findings of fact or 

conclusions of law.” Id. “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.” Kenyon, ¶ 13, 

247 P.3d at 849.

DISCUSSION

[¶20] Leavitt first contends that the OAH hearing examiner erred as a matter of law 

when he disregarded the only expert medical causation testimony presented at the 

contested case hearing, that of Dr. Ross. That contention cannot be squared with our 

prior rulings. We have held that an agency may disregard evidence, including expert 

testimony, if it explains its reasons for doing so based upon witness credibility or other 

factors which can be found in the record, and if it could reasonably conclude as it did 

based on all of the evidence before it. Hoffman, ¶ 7, 291 P.3d at 301; Davenport v. State 

ex rel. Wyo. Workers’ Safety & Comp. Div., 2012 WY 6, ¶ 12, 268 P.3d 1038, 1041-42 

(Wyo. 2012).

[¶21] A hearing examiner is not bound to accept and may disregard testimony which is 

not contradicted by an opposing expert if the circumstances of a case render it less than 

credible, or if that testimony is evasive, equivocal, confused, “clouded with uncertainty 

and improbability, or otherwise . . . unreliable or unworthy of belief.” David v. State ex 

rel. Wyo. Workers’ Safety & Comp. Div., 2007 WY 22, ¶ 15, 151 P.3d 280, 290 (Wyo. 

2007). In addition, a hearing examiner may disregard a medical expert’s opinion if it is 

unreasonable, inadequately supported by the facts upon which it purportedly rests, or 

based upon an incomplete or inaccurate medical history. Middlemass v. State ex rel. 

Wyo. Workers’ Safety & Comp. Div., 2011 WY 118, ¶ 29, 259 P.3d 1161, 1168 (Wyo. 

2011).

[¶22] The hearing examiner adequately identified the evidence that led him to disregard 

Dr. Ross’ testimony. Leavitt is correct in her assertion that Dr. Ross related Leavitt’s 

current back problems to the original compensable injury to a reasonable degree of 

medical probability at more than one point in his testimony. However, he was unaware 

that between 2001 and 2009 there was a significant period of time in which there was
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little or no treatment for lower back pain, and that her chiropractors’ records showed few

treatments for that complaint between 2007 and 2009. Those records reflected many

treatments for shoulder, upper back, neck, and arm pain that Leavitt attributed to

remodeling work on her house, riding her bicycle a lot, and an uncomfortable bed. The

fact that those records do not contain many complaints of back pain supports the

conclusion that there was a hiatus between the symptoms caused by the original injury

and surgery and those which resulted from the snow-shoveling incident.

[¶23] Although the Court is aware that radiographic studies and other testing may not 

reveal the existence or the cause of a soft tissue injury like a lumbar strain, Dr. Ross did 

not order radiographic or other testing that might have provided him with some 

information, such as the existence of osteophytes or bone spurs, to provide an objective 

basis for his causation opinion. The hearing examiner found the absence of such studies 

to be another factor undermining Dr. Ross’ opinion.

[¶24] Finally, Dr. Ross conceded that nine or ten different things might have caused 

Leavitt’s most recent pain, and that they could have been the result of the muscle strain 

that often accompanies shoveling snow even in persons with no back pathology. He did 

not rule out alternative causes but simply testified that he believed Leavitt’s current 

complaints were the result of aggravation of the original injury without an adequate 

explanation as to how that particular cause could be ruled in when a person with a

“normal” back might suffer the same kind of strain from shoveling snow. 

[¶25] The doctor’s opinion rested on his observation that the 1996 and 2009 incidents 

produced similar symptoms and his belief that discectomies are often followed by 

degenerative changes that can trigger pain after periods of physical activity. 

Notwithstanding his concessions that Leavitt’s pain could have been caused by a variety 

of factors not related to her original injury, he repeatedly retreated to the latter theme 

under questioning. 

[¶26] The hearing examiner could reasonably conclude as he did that Dr. Ross’ 

generalizations regarding outcomes of discectomies did not reflect a sound medical basis 

for the conclusions reached in this particular case. He concluded that Leavitt had a long 

period with few back pain complaints after her 1996 surgery, that she had engaged in an 

activity that Dr. Ross conceded could cause the lumbar strain he diagnosed, and that Dr. 

Ross’ testimony did not establish that she would not have strained her lower back if she 

had not had the compensable injury and discectomy years before. As noted above, we 

defer to a hearing examiner’s findings of fact unless they are clearly contrary to the 

overwhelming weight of the evidence. Willey, ¶ 20, 288 P.3d at 427 (citing Beall, ¶ 28, 

271 P.3d at 1034). We therefore conclude after an independent review of the record that 

the hearing examiner did not err and could reasonably have decided to disregard Dr. 

Ross’ testimony. 
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[¶27] Leavitt also asks this Court to evaluate the OAH’s decision pursuant to our 

“arbitrary and capricious” standard of review due to the hearing examiner’s alleged 

failure to make sufficient findings of fact. She asserts that the hearing examiner should 

have made express findings on questions such as whether Leavitt shoveled only a “little 

bit of snow” at her house, whether she took small scoops of snow, when her severe pain 

started in relation to shoveling, and whether she believed that she might need additional 

back surgery in late 2009 (which might bear on her motivation to claim a causal 

connection to the original injury).

[¶28] We have held that the “arbitrary and capricious” standard of review is a “safety 

net” to which we resort when challenged agency action cannot be easily categorized or 

easily fit to any of the other review standards set out in Wyoming’s Administrative 

Procedures Act. The alleged failure of a hearing examiner or body to provide sufficient 

findings of fact may be reviewed under this standard. Exxon Mobil Corp. v. Wyo. Oil & 

Gas Conservation Comm’n, 2013 WY 32, ¶ 23, 297 P.3d 782, 788 (Wyo. 2013).

[¶29] We have never held that a hearing examiner’s decision must contain findings 

specifying a decision as to every fact in dispute. We have only required that such an 

order contain the basic findings of fact upon which the hearing examiner based his 

ultimate conclusions relating to “material issues in the proceeding.” Id., ¶ 26, 297 P.3d at 

788. The findings must be sufficient to permit us to determine whether the agency 

decision was supported by substantial evidence and was otherwise reasonable. Id., ¶ 26, 

297 P.3d at 788-89.

[¶30] The hearing examiner concluded that Leavitt had not carried the burden of 

demonstrating that the back pain she experienced in late December of 2009 was causally 

related to her compensable injury in 1996. He was required to determine and set out 

those facts that were material to that conclusion, which he did. We have summarized the 

pertinent facts above and find them to be adequate to support the decision rendered. We 

therefore reject the claim that the OAH ruling was arbitrary and capricious due to 

inadequate findings of fact.

[¶31] Finally, Leavitt argues that the agency decision was not supported by substantial 

evidence. After conducting an independent review of the record, we conclude that the 

hearing examiner’s conclusion that Leavitt simply did not prove her case was not 

contrary to the overwhelming weight of the evidence.

[¶32] We review to determine whether the record as a whole contains relevant evidence 

that a reasonable mind might accept as adequate to rationally support the hearing 

examiner’s conclusion. Jacobs, ¶ 8, 301 P.3d at 141; Kenyon, ¶ 11, 247 P.3d at 849. 

Stated another way, this Court must be able to conclude that the agency decision was not 

contrary to the overwhelming weight of the record evidence as a whole. Jacobs, ¶ 8, 301 

P.3d at 141; Hoffman, ¶ 7, 291 P.3d at 301. We need not determine that each and every
8

finding of fact had a reasonable evidentiary basis, but only that those necessary to support

the decision were so supported. We have adequately discussed the facts supporting the 

hearing examiner’s decision.

[¶33] We agree with the district court that some of the findings the OAH made are 

unsupportable. Among these are the following:

 That Dr. Ross had testified, while discussing his efforts to manage back pain without

surgery, that he would perform a surgery if Leavitt needed one. The examiner found

this bore on his credibility because Dr. Ross is not a surgeon, and he could not of

course have performed the surgery. However, as the district court concluded, the 

context of that portion of Dr. Ross’ testimony meant that he would refer a patient to a 

surgeon if he found certain conditions to exist. The examiner’s finding to the contrary 

was not supported by the evidence.

 That Leavitt’s counsel had showed his outline to Dr. Ross during his deposition to 

influence his testimony or to coach him. The deposition clearly reflects that counsel 

stated that he needed a moment to refer to his outline to formulate a question about 

the dates of certain specific treatment, which he did. The hearing examiner’s finding 

in this respect was not only unreasonable but also unfair to counsel, who, as far as we 

can tell, was never provided an opportunity to respond to those accusations.

 That Dr. Ross acted with an eye towards compensation for an aggravation of a 

preexisting condition rather than establishing the actual cause of Leavitt’s complaints, 

which the examiner evidently believed bore on his credibility. The record does not 

support this finding. It is speculation. 

[¶34] The above findings set a tone which concerns the Court when they are found in the 

decision of a quasi-judicial officer. Nevertheless, as we noted above, the evidence in the 

record and the hearing officer’s findings of fact as a whole provide adequate support for 

the decision to disregard Dr. Ross’ opinion as to the causation of Leavitt’s back pain and 

to affirm the Division’s determination. Both the OAH and the district court reasonably 

concluded from the record that the doctor’s testimony was equivocal and largely 

speculative, and that it could not be squared with his concession that a number of factors 

could have caused Leavitt to experience pain after shoveling snow even if she had not 

injured her back thirteen years earlier. The conclusion that Leavitt failed to carry her 

burden of showing that the pain experienced after shoveling snow in 2009 was related to 

her compensable injury in 1996 was not contrary to the overwhelming weight of the 

evidence before the hearing examiner.

CONCLUSION
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[¶35] We have determined that the OAH hearing examiner did not err as a matter of law 

when he disregarded Dr. Ross’ opinion as the cause of Leavitt’s injuries, that the hearing 

examiner’s findings of fact were sufficient, and that his decision was not contrary to the 

weight of the evidence even though certain findings not essential to the decision were 

incorrect. We therefore affirm the Opinion and Order of the district court.