MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
BILL MEIER, Justice.
I. INTRODUCTION
The primary issue we address in this appeal concerns the construction of a divorce decree and whether, as a matter of law, it did or did not divest Appellant James Chafin of his interest in certain real property. In two issues, James argues that the trial court erred by granting summary judgment for Appellees Richard G. Isbell and Fairway Independent Mortgage Corporation and by denying his motion for summary judgment. We will reverse and render.
II. FACTUAL AND PROCEDURAL BACKGROUND
The trial court signed an "Agreed Final Decree of Divorce" dissolving the marriage of James and Kristine Rynetta Chafin on July 20, 2004. In dividing the marital estate, the decree included a disposition of two residences owned by James and Kristin: the "Jenkins property" and the "Osprey property." The decree stated the following in regard to the Jenkins property:
IT IS ORDERED AND DECREED that the husband, [James], is awarded the following as his sole and separate property, and the wife is divested of all right, title, interest, and claim in and to that property:
H-1.
The following real property, including but not limited to any escrow funds, prepaid insurance, utility deposits, keys, house plans, home security access and code, garage door opener, warranties and service contracts, and
title and closing documents:
BEING LOT 62, IN BLOCK 209 OF THE COLONY NO. 24, AN ADDITION TO THE CITY OF THE COLONY, DENTON COUNTY, TEXAS ACCORDING TO THE MAP THEREOF RECORDED IN CABINET C, PAGE 200 OF THE MAP RECORDS OF DENTON COUNTY, TEXAS.
This award to the husband is subject to payment of the sum of $10,000.00 to [Kristine] upon the sale of the property located at 5916 Osprey Court, The Colony, Texas 75056 for her portion of equity in this real property, as set forth hereinbelow. [Emphasis added.]
The decree ordered James to pay "[t]he balance due . . . on the promissory note executed by [Kristine] and [James] and secured by Deed of Trust on the real property awarded in this Decree to [James]."
Concerning the Osprey property, the decree stated the following:
IT IS ORDERED AND DECREED that the wife, [Kristine], is awarded the following as her sole and separate property,
and the husband is divested of all right, title, interest, and claim in and to that property:
W-1.
The use and benefit of the following real property,
until it is sold as set forth hereinbelow:
BEING LOT 1, BLOCK B, STEWART PENINSULA SOUTHSHORE PHASE 1, AN ADDITION TO THE CITY OF THE COLONY, DENTON COUNTY, TEXAS ACCORDING TO THE MAP THEREOF RECORDED IN THE MAP RECORDS OF DENTON COUNTY, TEXAS [Emphasis added.]
The decree ordered Kristine to pay "[t]he monthly payments (until the property is sold) on the promissory note executed by [Kristine] and [James] payable to Ameriquest Mortgage and secured by deed of trust on the real property located at 5916 Osprey Court, The Colony, Texas 75056."
In addition to dividing the Jenkins property and Osprey property, the decree included a section entitled "Provisions Dealing with Sale of Residence," which ordered the sale of the Osprey property pursuant to the following terms and conditions:
1.
The parties shall list the property with a duly licensed real estate broker having sales experience in the area where the property is located. . . .
2. The property shall be sold for a price that is
mutually agreeable to [Kristine] and [James]. If [Kristine] and [James] are unable
to agree on a sales price, on the application of either party, the property shall be sold under terms and conditions determined by a court-appointed receiver.
3. [Kristine] shall continue to make all payments of principal, interest, taxes, and insurance on the property during the pendency of the sale, and [Kristine] shall have the exclusive right
to enjoy the use and possession of the premises until closing. All maintenance and repairs necessary to keep the property in its present condition shall be paid one-half by [Kristine] and one-half by [James].
4. The net sales proceeds . . . shall be distributed as follows:
a. [Kristine's] one-half shall be distributed outright to [Kristine].
b. [James's] one-half shall be distributed in the following order:
i. Payment to [Kristine] in the amount of $10,000.00 for her portion of equity in the [Jenkins property].
ii. Remaining balance to [James]. [Emphasis added.]
According to James's original petition, William and Ramona Bauerly purportedly purchased the Osprey property from Kristine in March 2005. James alleged that "[a]lthough [he] was an owner of the [Osprey property] at the time of the sale, he was wrongfully excluded from the closing and his name is not on the deed to the Bauerlys." Appellees state that "[i]n connection with the sale of the Osprey Property to Bauerly, a copy of the agreed divorce decree was recorded in the Deed Records of Denton County, Texas as evidence that the title to the Osprey Property was vested in [Kristine]." In April 2007, Isbell purchased the property from the Bauerlys, and Fairway provided the mortgage financing.
In May 2009, James sued Appellees for a declaratory judgment and for a partition of the Osprey property. He alleged that the divorce decree did not divest him of his ownership interest and title to the Osprey property but, instead, merely awarded Kristine the use and benefit of the property until it was sold. James averred that he owned an undivided one-half interest in the Osprey property; that the Bauerlys could not have acquired a greater interest in the Osprey property than that owned by Kristine; that the Bauerlys did not acquire his one-half interest in the Osprey property; that neither Isbell nor Fairway subsequently acquired interests in the Osprey property as innocent purchasers without notice; and that Fairway's security interest in the Osprey property did not encumber his undivided one-half interest in the property.
James alleged in the alternative that that divorce decree was ambiguous.
Appellees filed a motion for summary judgment on James's claims for declaratory relief and for a partition. They argued that there was no genuine fact issue that James did not have an interest in the Osprey property because the divorce decree divested him of all right, title, and interest in and to the property. James responded and filed a counter-motion for summary judgment, arguing that he was entitled to summary judgment on his declaratory relief and partition claims because the evidence established as a matter of law that the divorce decree did not divest him of his interest in the Osprey property and, therefore, that he remained the owner of an undivided one-half interest in the property. The trial court granted Appellees' motion and denied James's motion. This appeal followed.
III. STANDARD OF REVIEW
In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo, taking as true all evidence favorable to the nonmovant and indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Mann Frankfort, 289 S.W.3d at 848; 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005). When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties' summary judgment evidence and determine all questions presented. Mann Frankfort, 289 S.W.3d at 848. The reviewing court should render the judgment that the trial court should have rendered. Id.
IV. SUMMARY JUDGMENT — DECLARATORY JUDGMENT AND PARTITION
In his first and second issues, James argues that the trial court erred by granting Appellees summary judgment and by denying his motion for summary judgment on his declaratory judgment and partition claims because the decree did not, as a matter of law, operate to convey his interest in the Osprey property to Kristine but merely awarded her the "use and benefit" of the property until it was sold. James concedes that Kristine would have had the authority to sell the Osprey property without his participation had the decree divested him of his interest in the property, but he argues that because the decree, which is unambiguous, did not divest him of his interest, he remained — and continues to be — a joint owner of the property. According to James, because he owns an undivided one-half interest in the Osprey property, Isbell could not have mortgaged more than half of the property (the half interest that the Bauerlys purchased from Kristine and that Isbell purchased from the Bauerlys), the lien asserted by Fairway is ineffective as to his one-half interest in the property, and he has an absolute right as a joint owner to a partition of the property.
Appellees agree that the sole issue on appeal is whether the divorce decree, which they also agree is unambiguous, divested James of title to the Osprey property. But unlike James, they argue that "the divorce decree[,] when read as a complete document, rather than isolating certain phrases, clearly divests [James] of any title interest in the Osprey Property." Appellees base this argument primarily on the provision in the decree that addresses the division of the Osprey property and provides that James is divested "of all right, title, interest, and claim in and to that property." In light of this language, they argue that "[t]he decree . . . clearly states that [James] is `divested of all right, title, interest' to the property." Appellees also rely on the provisions in the decree making Kristine responsible for the monthly payments and ad valorem taxes on the Osprey property and ordering James and Kristine to execute and exchange special warranty deeds.
An agreed divorce decree is interpreted according to the law of contracts. Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986); Chapman v. Abbot, 251 S.W.3d 612, 616 (Tex. App.-Houston [1st] 2007, no pet.); Soto v. Soto, 936 S.W.2d 338, 341 (Tex. App.-El Paso 1996, no writ). Our primary concern when interpreting an agreement is to ascertain and give effect to the intent of the parties as it is expressed in the agreement. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Chapman, 251 S.W.3d at 616. We examine the writing as a whole in an effort to harmonize and give effect to all the provisions so that none will be rendered meaningless. Coker, 650 S.W.2d at 393. If the agreement can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe it as a matter of law. Id.; Broesche v. Jacobson, 218 S.W.3d 267, 271 (Tex. App.-Houston [14th] 2007, pet. denied). If the agreement is capable of more than one reasonable interpretation, it is ambiguous. Broesche, 218 S.W.3d at 271.
We agree with James and Appellees that the divorce decree is unambiguous. We therefore construe the decree as a matter of law. See Coker, 650 S.W.2d at 393.
The divorce decree orders and decrees that Kristine "is awarded the following as her sole and separate property" and that James "is divested of all right, title, interest, and claim in and to that property." [Emphasis added.] The italicized language, "the following" and "that property," is intended to refer to the items of marital property listed immediately thereafter of which Kristine is awarded as her separate property and James is divested of all right, title, interest, and claim in and to. In the absence of identifying some property that Kristine is awarded (and of which James is divested), the provision would have no meaning or effect whatsoever. See Wilde v. Murchie, 949 S.W.2d 331, 333 (Tex. 1997) (cautioning that courts should not give conclusive effect to a judgment's use or omission of commonly employed decretal words); Tex. Workers' Comp. Ins. Fund v. Lopez, 21 S.W.3d 358, 362 (Tex. App.-San Antonio 2000, pet. denied).
The first item of marital property that Kristine is awarded as her separate property and that James is divested of all right, title, interest, and claim in and to is the "use and benefit" of the Osprey property "until it is sold." Although the decree contains a legal description of the Osprey property, it clearly and unambiguously provides that Kristine is awarded as her separate property only the "use and benefit" of the property. This particular provision simply does not award Kristine full title to the property, including James's undivided one-half interest. Appellees' interpretation of the decree — that Kristine was awarded title to the Osprey property — unquestionably renders meaningless the decree's "use and benefit" language.
A divorce decree awarding a spouse the "use and benefit" of a residence is not unheard of or uncommon. In 1915, the Austin court of civil appeals considered whether a judgment awarding the wife the "use and benefit" of the homestead during her life divested the husband of his interest and title to the property. Wade v. Wade, 180 S.W. 643, 643 ((Tex. Civ. App.-Austin 1915, no writ). The court concluded that granting the wife "the use of the homestead during her natural life is not, we think, equivalent to divesting [the husband] of his title thereto. It has been expressly held . . . that the court, in divorce cases, has the right to decree the use and benefit of the homestead to the wife during her lifetime." Id. at 644 (citations omitted). Other courts have reasoned similarly. See Laster v. First Huntsville Props. Co., 826 S.W.2d 125, 129 (Tex. 1991) (reasoning that divorce decree awarding wife the "use and occupancy of the residence" created in her rights analogous to those of a life tenant and in husband a future interest similar to that held by a vested remainderman); Gilleland v. Meadows, 329 S.W.2d 485, 488 ((Tex. Civ. App.-Waco 1959, no writ) (stating that husband had an interest in property that was awarded to wife for the use and benefit of her minor children); see also Bakken v. Bakken, 503 S.W.2d 315, 317 ((Tex. Civ. App.-Dallas 1973, no writ) (reasoning that evidence supported trial court's decree awarding wife residence for the use and benefit of her and the minor children and the first $7,500 of the net proceeds from the eventual sale of the residence).
Our construction is supported when we examine the decree as a whole, as we must. See Coker, 650 S.W.2d at 393. The portion of the decree awarding property to James contains the same decretal language preceding the identification of property as that found in the part of the decree awarding Kristine property. It states that James "is awarded the following as his sole and separate property" and that Kristine "is divested of all right, title, interest, and claim in and to that property." However, unlike the decree's award to Kristine of the "use and benefit" of the Osprey property "until it is sold," the decree here provides that James is awarded "[t]he following real property," including the title and closing documents. There is no dispute that this contrasting language awarded James the Jenkins property.
Further, the portion of the decree setting out the terms and conditions of the sale of the Osprey property supports our construction. The decree provides that "[t]he parties" shall list the property, that the property shall be sold for a price that is "mutually agreeable" to Kristine and James, and that Kristine shall have the exclusive right to enjoy the "use and possession" of the premises until closing. The decree essentially reaffirms that Kristine is merely awarded the use of the Osprey property instead of title, and it makes little sense, if any, to order Kristine and James to jointly list the property and to mutually agree on a selling price if the decree awarded Kristine title to the property.
Contrary to Appellees' argument, the decree's award to Kristine of only the "use and benefit" of the Osprey property does not conflict with its ordering her to make payments on the property and to pay the ad valorem taxes until the property is sold. And we cannot conclude that the portion of the decree ordering that James and Kristine exchange special warranty deeds in the forms attached to the decree conflicts with our construction; there are no special warranty deeds attached to the decree, and thus there are no special warranty deeds that are a part of the summary judgment record.
A case with strikingly similar facts and issues to this case is Starkey v. Holoye, 536 S.W.2d 438, 439-40 ((Tex. Civ. App.-Houston [14th] 1976, writ ref'd n.r.e.). In that case, Starkey and Safford's divorce decree awarded marital property to Safford and the minor children "for their use and benefit as their home, until the youngest of said children shall have reached the age of eighteen (18) years." Id. at 440. After the divorce, Safford remarried, and he and his wife later purported to convey the entire property to the Holoyes by a general warranty deed, which was subject to a vendor's lien assigned to United Mortgage Company of Texas. Id. Starkey sued Holoye and United Mortgage Company for title to an undivided one-half interest in the property, for partition of the property or the proceeds from the sale thereof, and, among other things, to have liens on the property declared to be of no force and effect as against her interest in the property. Id. at 439. The Holoyes filed a cross-action against Safford, and the trial court ultimately denied Starkey's motion for summary judgment. Id. On appeal, in addition to determining that the divorce decree awarded Safford a right to reimbursement for payments he made on the property after the divorce, the court of civil appeals reasoned as follows:
Since the property was not partitioned at the time of the divorce, [Safford] and [Starkey] became tenants in common or joint owners thereof, each owning an undivided one-half interest. With a deed on record showing the owners of the property to be [Safford and Starkey], the Holoyes could not have purchased from [Safford and his wife] any greater interest in the property than was owned by [Safford]: an undivided one-half interest. Upon their purchase of [Safford's] interest, the Holoyes became tenants in common with [Starkey]. [Starkey] presently owns an undivided one-half interest, subject to a claim by [Safford] for reimbursement for any payments made on the property after [the date of the divorce]. Since she is still a joint owner of the property, and absent any agreement not to partition, [Starkey's] right to partition is absolute under [the property code].
Further, the Holoyes could not mortgage more of the property than they owned. Therefore, they could not mortgage [Starkey's] interest, and the lien asserted by United Mortgage Company is ineffective as to [Starkey's] one-half interest.
Id. at 441 (citations omitted).
Starkey is instructive on James's claims for declaratory judgment and for partition.
Regarding partition, both Appellees and James contend that the issue of partition turns on whether James is a joint owner of the Osprey property. A joint owner or claimant of real property or an interest in real property may compel a partition of the interest or the property among the joint owners or claimants. Tex. Prop. Code Ann. § 23.001 (Vernon 2000); see Tex. R. Civ. P. 756-71. The right to partition has been characterized as "absolute." Grant v. Clouser, 287 S.W.3d 914, 919 (Tex. App.-Houston [14th Dist.] 2009, no pet.). Three prerequisites are necessary for a partition: the partitioners must be joint owners, they must be joint owners of the land to be partitioned or some interest therein, and the party seeking the partition must have an equal right to posses the land with the other joint owners. First Nat'l Bank in Dallas v. Tex. Fed. Sav. Loan Ass'n, 628 S.W.2d 497, 498 (Tex. App.-Texarkana 1982, writ ref'd n.r.e.). There is no evidence that James waived his right to partition the property.
We have examined the divorce decree as a whole toward the end of harmonizing and giving effect to all that is written. See Wilde, 949 S.W.2d at 333. We hold that the trial court erred by granting Appellees' motion for summary judgment on James's declaratory judgment and partition claims and by denying James's motion for summary judgment on those same claims. The divorce decree did not, as a matter of law, convey James's interest in the Osprey property to Kristine, thus divesting him of title to the property; rather, the decree awarded Kristine only the "use and benefit" of the Osprey property until it was sold. Consequently, title to the Osprey property was not vested in Kristine when she sold the property in March 2005, and James remained a joint owner of the property. See Starkey, 536 S.W.2d at 441. Because the divorce decree did not convey James's interest in the Osprey property to Kristine, Isbell could not have acquired James's interest in the property when he purportedly purchased the property from the Bauerlys, and Fairway's security interest could not have encumbered James's interest. See id. As a joint owner of the Osprey property with an equal right to possession, James has an absolute right to partition the property. See id.; see also Tex. Prop. Code Ann. § 23.001. Accordingly, we sustain James's first and second issues.
V. CONCLUSION
Having sustained James's first and second issues, we reverse the trial court's judgment and render judgment in favor of James on his claims for declaratory relief and for partition.
roof, 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.
See, Wyo. Consumer Group v. Public Serv. Comm'n of Wyo., 882 P.2d 858, 860-61 (Wyo. 1994); [
Board of Trustees, Laramie County Sch. Dist. No. 1 v.] Spiegel, 549 P.2d [1161] at 1178 [(Wyo. 1976)] (discussing the definition of substantial evidence as "contrary to the overwhelming weight of the evidence"). 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.
The arbitrary and capricious standard remains a "`safety net' to catch agency action which prejudices a party's substantial rights or which may be contrary to the other W.A.P.A. review standards yet is not easily categorized or fit to any one particular standard."
Newman [v. State ex rel. Wyo. Workers' Safety and Compensation Div.] [
2001 WY 91] ¶ 23, 49 P.3d [163] at 172 [(Wyo. 2002)]. Although we explained
the "safety net" application of the arbitrary and capricious standard in
Newman, we will refine it slightly here to more carefully delineate that it is not meant to apply to true evidentiary questions. Instead, the arbitrary and capricious standard will apply if the hearing examiner refused to admit testimony or documentary exhibits that were clearly admissible or failed to provide appropriate findings of fact or conclusions of law. This listing is demonstrative and not intended as an inclusive catalog of all possible circumstances.
Id.
There will be times when the arbitrary and capricious standard appears to overlap with some of the other standards. For example, a decision against the great weight of the evidence might properly be called arbitrary or capricious in everyday language. However, the words "arbitrary" and "capricious" must be understood in context as terms of art under the administrative review statute and should not be employed in areas where the more specifically defined standards provide sufficient relief.
In summary, while we believe
Newman was analytically correct and supported by relevant authorities, application of the different standards of review to evidentiary matters proved confusing and led to arguably inconsistent decisions. Thus, we take this opportunity to diverge somewhat from
Newman in order to simplify the process of determining the proper standard of review for both litigants and courts. In the future, we will apply the substantial evidence standard anytime we are reviewing an evidentiary issue.
We review an agency's conclusions of law de novo, and we will affirm such legal conclusions only if they are in accordance with law. Dale, ¶ 26, 188 P.3d at 561-62.
[¶ 15] In this case, we are called upon to apply two of the standards set out in Dale. First, the Commission made many credibility determinations in its analysis of the evidence and in that regard we will apply this aspect of the Dale standard:
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.
Dale, ¶ 22,
188 P.3d at 561. "Substantial evidence" consists of the relevant evidence in the entire record which a reasonable mind might accept in support of the agency's conclusions.
Id.
[¶ 16] Second, after having examined the Commission's credibility determinations, and because the panel determined that Camilleri failed to meet her burden of proof, we must then 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.
[¶ 17] Although mention is made of the "arbitrary and capricious" standard in the Division's brief, Camilleri did not rely on that aspect of the Dale standard of review, and we discern no reason to call it into play.
[¶ 18] It is not clear why this case was reassigned from the OAH to the Medical Commission. Camilleri requested that her case be assigned to the Medical Commission, but it was the Division's initial decision to assign it to OAH. The justification for the change was based upon there being a dispute about Camilleri's physical impairment rating, but the record does not bear out that any such conflict existed. So far as the record shows, none of Camilleri's treating physicians had evaluated her for an impairment rating. Nonetheless, without objection from Camilleri, the Division sent her to see Paul E. Ruttle, M.D. He performed an independent medical evaluation (Orthopedic Medical Evaluation) at the Division's request and that report was received by the Division on June 20, 2005. In the report Dr. Ruttle noted that Camilleri's impairment rating is 3%, that she had reached maximum medical improvement, and he recommended that Camilleri "undergo psychiatric evaluation on a nonindustrial injury basis." Dr. Ruttle spent 45 minutes reviewing Camilleri's voluminous medical records, 45 minutes in a face-to-face evaluation of the patient, and 30 minutes in report preparation. Michael J. Ford, M.D., was also asked to do an IME on Camilleri. His report was received by the Division on September 2, 2005. He spent one hour reviewing medical records, 20 minutes with Camilleri, and 40 minutes to prepare the written evaluation. Dr. Ford concluded that her impairment rating was zero.
[¶ 19] Camilleri's primary orthopedic physician, Dr. Randolph did not provide, nor was he asked to provide, an impairment rating. As noted above, on June 22, 2005, Camilleri was informed that her further claims would be denied.
[¶ 20] All of the medical records summarized above are contained in the record on appeal. In addition, a video-conference hearing was held on May 16, 2007, at which Camilleri's primary physician testified, as did Camilleri, Camilleri's husband, and Benita Bauer, the co-worker who was alleged to have impacted her shoulder, against that of Camilleri, at their workplace, so as to injure her left shoulder.
[¶ 21] The Commission issued a lengthy decision letter on July 30, 2007. Camilleri filed a petition for review in the district court and by decision letter issued on June 24, 2009, the district court affirmed the decision of the Commission. While we always utilize and appreciate the district court's appellate decision, we afford no deference to the district court's decision. Instead, we review the agency's decision as if it came directly from the agency. Dale, ¶ 8, 188 P.3d at 557.
Credibility of Witnesses
[¶ 22] Camilleri's challenge to the Commission's decision is two-pronged. It is her contention that its decision is contrary to the overwhelming weight of the evidence in the record before us. Of great importance to that argument, is her contention that the Commission credited the testimony of all witnesses for the Division, but found that Camilleri's witnesses were pretty much across the board not credible. In analyzing such credibility determinations we apply the "substantial evidence" test, i.e., is there relevant evidence in the entire record which a reasonable mind might accept in support of the credibility determinations made.
[¶ 23] We will address the Commission's credibility findings in the same order as they were memorialized in the Commission's findings. We begin by noting that the Commission considered on-going treatment of Camilleri's cervical spine as an issue in dispute at the hearing, and that it included her shoulder only parenthetically as an issue (as shown in this sentence): "Whether the . . . Claimant's ongoing treatment for her cervical spine [and shoulder] is related to her work injury." At the outset of the hearing, Camilleri conceded that the issues with her cervical spine had been resolved, and it was only the condition of her shoulder that was at issue at the hearing. The second issue in dispute is whether the percentage of Camilleri's physical impairment was disputed. If it was disputed, the Division was to obtain a second opinion and if that rating conflicted with the one provided by Camilleri's physician, then it was the Commission's purpose to determine the physical impairment award upon consideration of the initial and second opinion. Wyo. Stat. Ann. § 27-14-05(m) (LexisNexis 2009). In this case, Camilleri's treating physician did not provide, nor was he asked to provide, an impairment rating for his patient. Indeed, the Division obtained two "second-opinions" and wholly disregarded Dr. Randolph's testimony and all of the medical records provided by him to the Division. Both "second-opinions" conflicted with Dr. Randolph's assessment of his patient.
[¶ 24] In the Commission's findings it is noted that the Division also sought a forfeiture of benefits paid on Camilleri's behalf because she declined surgery. However, the Division did not file the necessary petition, so that claim was not considered by the Commission. See Wyo. Stat. Ann § 27-14-07 (LexisNexis 2009).
[¶ 25] The Commission noted in its findings that the report filled in (it is a fill-in-the blanks form) by Camilleri's supervisor stated only that: "Another employee walked into this employee, hitting her [left] shoulder." In a report written by Camilleri herself, she reported the incident in these words: "Bert Bauer walked towards me and slammed her [left] shoulder and [left side] of body into my [left] shoulder and shoved me." After reviewing Camilleri's "injury report and other documents," on October 22, 2004, the Division issued a "Final Determination Opening Case" and Camilleri received benefits until late June of 2005 as noted more fully above. The Division continued to inquire about Camilleri's progress in physical therapy after June 22, 2005.
[¶ 26] In a sworn statement given to the Worland Police Department on September 28, 2004, Camilleri elaborated on the event of September 1, 2004, and described a pattern of harassment on the part of Bauer toward her. Through her attorney, Camilleri also sought to press a claim with the Compliance Officer, Department of Employment, Labor Standards, over the incident at issue here, as well as the fact that her employment with the Center was terminated at the end of September 2004. On March 10, 2005, the new Executive Director of the Center forwarded some additional informal information from other employees of the Center, to the Division, which tended to discredit Camilleri's story that her back was injured on September 1, 2004. Of course, it is of some significance to note that Camilleri never made complaints about her back. It is also important to note that the record as a whole reveals that there were no "eye-witnesses" to the event Camilleri described, and the report referred to immediately above has very little evidentiary value, given that this case turned largely on depositions, sworn testimony, affidavits, and other documents that can be said to have some self-authenticating value ( e.g., doctor's notes, MRI's, medical tests, etc.). Camilleri said that Bauer did butt her with her shoulder, and Bauer denied it, but no one else purported to have seen the actual event in question.
[¶ 27] The record appears to bear out that Camilleri's job at the Senior Center was eliminated because of the expiration of a grant that funded her position. However, we note at this juncture that both Camilleri and the Executive Director who was serving at the time of the incident at issue here, described the work environment of the Senior Center as dysfunctional, and this was especially true with respect to Bauer. Camilleri did not dispute the evidence brought forward by the Division that she had been treated in the past for a variety of on-the-jobs injuries/conditions, although none of these were associated with her left shoulder. Camilleri did not dispute that she suffered from anxiety/depression. It is also undisputed that Camilleri underwent a variety of medical procedures and saw several doctors in the months after September 1, 2004, and prior to the hearing on May 16, 2007. It was not until Camilleri saw Dr. Randolph that the source of her pain was diagnosed by means of an MRI, although the accuracy of that diagnosis is also a critical point in this case. A radiologist identified a labrum tear in Camilleri's shoulder and Dr. Randolph concurred with the radiologist's reading of the MRI.
[¶ 28] The record reveals that Camilleri reported an incident wherein Bauer intentionally, or at least without pausing to acknowledge that she had done so, hit Camilleri with her left shoulder. Bauer self-reported that she is 5'9" tall and weighs 230 pounds, although she was described by both Camilleri and Wallingford as being somewhat larger than that. Camilleri was of about the same height and weighed approximately 170-80 pounds. As noted above, there were no "eye-witnesses to the event (i.e., no one reported seeing the incident that Camilleri described). Bauer reported that no such incident occurred and if there was such an encounter at all, it occurred the day before Camilleri reports it as occurring, and that she did no more than brush elbows with Camilleri at that time. Wallingford described Bauer as an "angry" and difficult employee and that she and Camilleri did not get along at all. The animosity Wallingford reported was based on the fact that Bauer did not like to have employees in her kitchen and most employees were prohibited from being there during the lunch hour, except for Camilleri and one other employee who had to go through the kitchen to get to their offices.
[¶ 29] The Commission paid especially close attention to Wallingford's testimony and set it out in detail. In one of several findings as to credibility, the Commission described Wallingford's testimony as "wanting." We construe that as a finding by the Commission that they did not believe Wallingford's testimony. The basis for that finding is that Wallingford chose to believe Camilleri (over Bauer), even though no one else witnessed the injury-causing incident, simply because Wallingford and Camilleri were friends. We note in this regard that our precedents do not require there to be "eye witnesses" to workplace injuries and that the testimony of an employee will suffice to establish that an injury occurred. This credibility determination appears to have been based on nothing more than idle speculation that Wallingford was motivated to lie because she was a "friend" of Camilleri. We can find no hint in the record that Wallingford did anything other than honestly and forthrightly describe the difficulties she had with Bauer; that Camilleri was not a difficult employee; and that Camilleri reported what Bauer had done and she believed Camilleri's report. We conclude that this credibility determination is not supported by any substantial evidence.
[¶ 30] The Commission goes on to find that Camilleri was not a credible witness either. Although the Commission's findings with respect to Camilleri's reporting of the injurious incident itself, as well as her subjective reports of the medical problems that followed, are somewhat tenuous, some of the documentary evidence does support a finding that significant portions of her testimony and reports of injury/pain were not credible. Her reports to authorities/agencies, as well as to examining physicians, were notable, in part, because they varied greatly from report to report and from time to time. Although there was a significant body of evidence to support the basic finding that Camilleri's testimony and reports lacked a sufficient level of credibility, we also note that the Commission undermined its own credibility when it decided to rely on what the Commission declared to be false reports of neck pain, when at the hearing Camilleri conceded that her neck pain problems had resolved and were no longer at issue. However, in the final balance, we conclude that the Commission's finding that much of Camilleri's testimony was not credible is supported by substantial evidence.
[¶ 31] A close examination of Dr. Randolph's testimony reveals several things of great significance in this case. First, he is the only physician who spent a meaningful amount of time with Camilleri. Second, he was the only physician who carefully examined the objective medical evidence (MRI's, etc.). Third, he is the only physician who listened diligently to Camilleri's subjective complaints. His testimony at the hearing was guarded. He acknowledged that Camilleri's condition could not be accurately diagnosed with clinical observations in the examination room, nor could it be diagnosed with certainty even with the latest and most advanced external diagnostic procedures. He conceded that he would not be able to state with certainty that she had suffered a shoulder injury until an invasive procedure was completed (one which Camilleri finally agreed to undergo quite reluctantly, because she wanted to avoid invasive procedures if possible). He also conceded that Camilleri's reports of pain appeared to be out of proportion to the injury she appeared to have suffered to her shoulder, although Dr. Randolph did diagnose a rare, but widely recognized pain syndrome that may have contributed to Camilleri's condition. However, we are unable to credit, even in the slightest degree, the Commission's findings about Dr. Randolph's credibility. The Commission concluded that Dr. Randolph had not credited the opinions of other physicians who examined Camilleri (Drs. Ruttle and Ford) and reached this conclusion: "Dr. Randolph may also have a financial stake in the outcome of this case given the extensive treatment performed after June of 2005 and for which he may not be paid." There is not so much as a scintilla of evidence to support such a finding and that this Commission would give voice to such a libelous accusation causes us great concern about the credibility of the Commission. See, e.g., Judd v. State ex rel. Wyo. Workers' Safety Comp. Div. (Medical Commission), 2010 WY 85, ¶¶ 36-40, 233 P.3d 956, 970-71 (Wyo. 2010); In re Worker's Comp. Claim of Glaze v. State ex rel. Wyo. Workers' Safety Comp. Div., 2009 WY 102, ¶¶ 27-30, 214 P.3d 228, 235 (Wyo. 2009); In re Worker's Comp. Claim v. State ex rel. Wyo. Workers' Safety Comp. Div., 2009 WY 66, ¶¶ 16-18, 208 P.3d 41, 48 (Wyo. 2009); Decker v. State ex rel. Wyo. Med. Comm'n, 2008 WY 100, 1130-36, 191 P.3d 105, 121-22 (Wyo. 2008); Nagle v. State ex rel. Wyo. Worker's Safety Comp. Div. (In re Worker's Comp. Claim of Nagle), 2008 WY 99, ¶ 13-39, 190 P.3d 159, 166-74 (Wyo. 2008); Walton v. State ex rel. Wyo. Workers' Safety Comp. Div. (Medical Commission), 2007 WY 46, ¶ 39, 153 P.3d 932, 941 (Wyo. 2007); Rodgers v. State ex rel. Wyo. Workers' Safety Comp. Div. (Medical Commission), 2006 WY 65, ¶ 53, 135 P.3d 568, 585 (Wyo. 2006); Decker v. State ex rel Wyo. Med. Comm'n, 2005 WY 160, 124 P.3d 686, ¶ 38-42, 124 P.3d 686, 698-99 (Wyo. 2005); Tarraferro v. State ex rel. Wyo. Med. Comm'n, 2005 WY 155, ¶ 18-21, 123 P.3d 912, 920 (Wyo. 2005); Vaughan v. State ex rel. Wyo. Workers' Comp. Div. (Medical Commission), 2002 WY 131, ¶ 33-36, 53 P.3d 559, 567 (Wyo. 2002); Keck v. State ex rel. Workers' Safety Comp. Div., 985 P.2d 430, 433 (Wyo. 1999).
Overwhelming Weight of Evidence
[¶ 32] Having determined that some of the Commission's credibility determinations are not supported by substantial evidence, it is now incumbent upon this Court to credit that testimony in determining the next part of the standard of review. In this regard we apply this standard: ". . . 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." Dale, ¶ 22, 188 P.3d at 561.
[¶ 33] We conclude that Wallingford's testimony was credible. Her decision to file a "Wyoming Report of Injury Form" was a duty, not some sort of option that turned on whether or not she believed Camilleri, at the time Camilleri made her report. In her deposition, she testified under oath and answered the questions asked of her. Her perceptions of the climate in the workplace at the Center may have differed from that of others who worked there, but the only questioning by the Division of any substance was whether or not she was still friends with Camilleri.
[¶ 34] We conclude that Dr. Randolph's testimony was credible. He appeared to be the only medical professional who had a complete grasp of Camilleri's medical picture. He was forthright in testifying that no medical expert could say that Camilleri did, or did not, have a serious injury to her shoulder, and that the final diagnosis would only come to light after surgery. He testified that the workplace incident described by Camilleri could have caused the injury, although he did not "decide" one way or the other whether it actually did happen exactly as Camilleri described. In this regard, the Commission did not appear to take into account that Dr. Randolph's duty as a physician is to treat patients who present with injuries that are treatable, whether or not he finds the details of "their history" credible or not. If Camilleri had a treatable shoulder injury, then it appeared to be his goal to do his best by her. To some extent, the other physicians who figure in the evidentiary "picture" of this case looked at her history of depression and anxiety and dismissed her as a "psychiatric" case. Camilleri never denied that she suffered from what may be categorized as "psychiatric" problems (anxiety/depression).
[¶ 35] Our criticisms of the Commission's credibility findings raise significant difficulties in crediting its ultimate conclusions. However, we have carefully reviewed all of the evidence contained in the record in reaching our ultimate holding. After that careful review, we hold that the record contains substantial evidence to support the Commission's decision to reject much of the testimony/evidence offered by Camilleri herself, as well as that the Commission's decision was not contrary to the overwhelming weight of the evidence in the record as a whole. Thus, while we are greatly concerned that the Commission's analysis of the testimonial and documentary evidence was seriously flawed we conclude that the Commission's decision should be affirmed.
CONCLUSION
[¶ 36] The decision of the district court to affirm the Medical Commission is also affirmed by this Court.
BURKE, Justice, specially concurring, with whom VOIGT, Justice, joins.
[¶ 37] I concur in the result reached by the majority but write separately for two reasons. First, I would commend, rather than criticize, the Medical Commission for its thoroughness and detailed explanations of its credibility determinations. Second, in light of those explanations, it is not the function of this Court to reweigh the Commission's credibility determinations.
[¶ 38] It is difficult to imagine a more comprehensive written decision than the Medical Commission's "Findings of Fact, Conclusions of Law and Order of Medical Commission Hearing Panel" issued in this case. The document is 40 pages in length. As demonstrated by the excerpts set forth below, the evidence before the Commission is presented in exhaustive detail. Most significantly, the Commission fully explained how it weighed that evidence. Where conflict in the testimony exists, the Commission explained how it resolved that conflict. Where evidence is disregarded based upon credibility concerns, the Commission provided a full explanation. "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." Dale v. S S Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo. 2008). See also Chavez v. State ex rel. Wyo. Workers' Safety Comp. Div., 2009 WY 46, ¶ 18, 204 P.3d 967, 971 (Wyo. 2009). Based upon my review of the record, I would conclude that the Commission's credibility determinations were supported by substantial evidence.
[¶ 39] We have previously emphasized that a Medical Commission, in rendering its decision, should make specific credibility determinations. Walton v. State ex rel. Wyo. Workers' Safety Comp. Din, 2007 WY 46, ¶ 31, 153 P.3d 932, 939 (Wyo. 2007). On occasion, we have found it necessary to remand a case because the hearing examiner failed to provide specific findings of credibility, making appellate review of the decision impossible. E.g., Olivas v. State ex rel. Wyo. Workers' Comp. Div., 2006 WY 29, ¶ 17, 130 P.3d 476, 486 (Wyo. 2006) ("When the resolution of a claim for benefits rests largely, if not exclusively, on an assessment of a claimant's credibility, a hearing examiner's failure to make findings regarding the claimant's credibility on the record renders an effective review of the order denying benefits impossible."). This is not such a case, and the majority does not suggest otherwise. Instead, the majority engages in its own credibility determinations. That is not the proper function of this Court and is directly at odds with our precedent. "Credibility determinations are the unique province of the hearing examiner, and we eschew reweighing those conclusions." Hamilton v. State ex rel. Wyo. Workers' Safety Comp. Div., 2001 WY 20, ¶ 11, 18 P.3d 637, 640 (Wyo. 2001). See Huntington v. State ex rel. Wyo. Workers' Comp. Div., 2007 WY 124, ¶ 11, 163 P.3d 839, 842 (Wyo. 2007); Olivas, ¶ 17, 130 P.3d at 485-486. This Court is not in a position to make determinations regarding the credibility of witnesses. The determination of the weight and credibility of the evidence is assigned by law to the administrative agency as the trier of fact, and it is not within this Court's prerogative to perform that duty. Leavitt v. State ex rel. Wyo. Workers' Safety Comp. Div., 980 P.2d 332, 335 (Wyo. 1999).
[¶ 40] At its core, this case revolved around the credibility of Ms. Camilleri. The Commission found that she was not credible, and there is ample support in the record for that determination. There is also support in the record for the Commission's conclusion that the testimony of her supervisor, Kathy Wallingford, was "wanting," and that the evidence presented by other medical experts was more persuasive than the testimony of Dr. Randolph, Ms. Camilleri's treating physician.
[¶ 41] The majority concludes that the Commission did not believe Ms. Walling-ford's testimony "simply because Wallingford and Camilleri were friends." That is not accurate. Their friendship was a factor mentioned by the Commission in discussing Ms. Wallingford's testimony, but there were additional reasons. Ms. Wallingford did not witness the accident. Additionally, she investigated the incident and could not find one witness to corroborate Ms. Camilleri's story. After describing Ms. Wallingford's testimony in detail, the Commission summed up its view of the testimony this way:
46. . . . The Panel notes that Ms. Wallingford is a friend of Ms. Camilleri's. Despite the fact that she was not present on the day of the incident, and that she was unable to confirm that anything occurred on the day in question by interviewing kitchen staff, it appears that she is accepting 100% of the Employee/Claimant's version of the events. Ms. Wallingford was terminated by the employer shortly after this incident by the board of directors. On the whole, the Panel finds that the credibility of Ms. Wallingford is wanting.
[¶ 42] That finding dovetails with the Commission's credibility determination regarding Ms. Bauer, the employee who allegedly caused the injury. According to the Commission:
49. Overall, the testimony of Ms. Bauer was credible and it appears this was a very minor incident. It is undisputed that numerous employees and volunteers [were] working in and near the kitchen when this event occurred. This is a small area. Had a significant event occurred in the doorway, it is probable that there would have been someone who saw something. No witness was called to corroborate the Employee/Claimant's version of these events. From her appearance before the Medical Commission, Ms. Bauer is in her late 50's or early 60's. She is five feet nine inches tall and [at] the time of the accident weighed 230 pounds. Ms. Camilleri is of similar height and weighed 170 pounds at the time of this incident. It seems highly improbable that Ms. Bauer administered a "body check" to Ms. Camilleri that would rival that of a hockey player. Ms. Wallingford conducted an investigation of this incident and none of the kitchen workers saw anything or were aware of any incident. . . . The Panel believes that this event was a very minor occurrence and that it is highly improbable that Ms. Camilleri sustained any injury.
[¶ 43] The Commission's "body check" reference is, in large measure, a response to the escalating versions of the incident given by Ms. Camilleri to her physicians and others. According to the Commission:
48. The record and testimony show[] that Ms. Camilleri was not credible in her reports to her doctors or to the Panel in this case. Her tone and demeanor during testimony and cross examination indicated she was not being forthcoming. The story of this event as related by Ms. Camilleri has grown and been dramatically changed over time. The report of injury filed with the Division noted that "another employee walked into this employee, hitting [left] shoulder." The report filed with her employer stated that Ms. Bauer slammed her left shoulder and upper body into Ms. Camilleri and shoved her. The Division's injury report paints a picture of a minor incident. The report to her employer presents an entirely different picture. Ms. Camilleri then reports to the police department that she had been assaulted numerous times by Ms. Bauer. However, no corroborating evidence of such was presented. In fact, Ms. Camilleri testified in her deposition that there were no prior physical contacts with Ms. Bauer. This report to the police corresponds to the time Ms. Camilleri lost her job. However, when Ms. Camilleri saw Dr. Jessen on October 28, 2004, she did not say anything about the work incident in issue. By the time she saw Dr. Biles she reported being deliberately slammed into or run into by a co-worker. She then told Dr. Goodman she had been hit by a door opened by a co-employee and she felt a "pop in her neck" and pain into her left shoulder. By the time she-saw Dr. Randolph, Ms. Camilleri related that when she was struck by a co-worker she was knocked to the ground. She told Dr. Ruttle that when she was hit
she felt a "pop" in her neck and that she had to catch herself on a counter. This was the first time since the injury that Ms. Camilleri related using her left arm to brace or catch herself. Ms. Camilleri then told Dr. Bilbool, a Psychiatrist, that she was tackled by a co-worker who hit her in the chest and shoulder.
(Internal citations omitted.)
[¶ 44] Those conflicting "histories" served as a partial basis for the Commission's decision to provide less weight to the opinion of Dr. Randolph. But the Commission also provided additional explanation:
54. The evidence is clear that Ms. Camilleri had a long history of neck and upper extremity issues. She treated with her chiropractor the day before the incident in question and received treatment on her neck. The incident involving Ms. Bauer was a minor or insignificant event. The Panel does not believe Ms. Camilleri sustained a neck injury. The Panel agrees with Dr. Goodman that, at worst, she sustained a minor exacerbation of her ongoing neck problems and this would have resolved within a short period of time. This is confirmed by Drs. Ruttle and Ford as well. Her neck was certainly at maximum medical improvement by June 22, 2005. To the extent Ms. Camilleri's doctors have opined to the contrary, they were related a history [by] the Employee/Claimant that some significant event occurred. These doctors were not fully aware of the Employee/Claimant's significant pre-existing history. They relied heavily on the subjective complaints of Ms. Camilleri. Dr. Randolph bases much of his opinions on Ms. Camilleri's history that at the time of the injury she spun and had to catch herself on her outstretched left arm. As discussed below, the Panel finds this did not occur. They also do not appear to be fully cognizant of Ms. Camilleri's hostility toward her former employer and co-employee, or the psychological factors in this case. None of these doctors, including Dr. Randolph, have adequately explained the cause of her pain. Likewise, these doctors do not appear to be fully aware of the variable and contradictory findings by other doctors as discussed throughout these findings. No one has explained the claims of bilateral upper extremity problems. There are reports of global pain, exaggerated pain, and pain behaviors that are not addressed. There is little objective evidence of a work injury. Dr. Randolph doggedly maintains that Ms. Camilleri has C.R.P.S. despite [the] fact that no criteria for this diagnosis exist as will be discussed below. Dr. Randolph may also have a financial say in the outcome of this case given the extensive amount of treatment performed after June of 2005 and for which he may not be paid. 55. As to the shoulder, again this was a minor incident. Prior to July of 2005, no doctor was able to determine what, if anything, was the cause of her claimed shoulder pain. No doctors were able to find laxity in the shoulder or confirm . . . popping or snapping in the shoulder. In July of 2005 Ms. Camilleri reported an incident where her shoulder may have shifted in bed. After this point her pain level appears to have increased. Thereafter, a physical therapist noted in September 2005, that Ms. Camilleri may have some instability in her shoulder and the shoulder did show some sliding to the front of the glenoid. She also had positive impingement testing. Left shoulder instability was also noted at the pain clinic in Billings. Following this July 2005 incident, a left shoulder arthrogram MRI was done that indicated a small tear of the glenoid labrum. Dr. Randolph testified that the MRI is not 100% diagnostic and the only way to confirm a glenoid labrum tear is through surgery. Dr. Ford did not believe the MRI showed a tear. Importantly, both Dr. Randolph and Dr. Ford both testified that such conditions are not caused by a direct blow to the shoulder. Such conditions occur from falling or landing on an outstretched arm or repetitive throwing. It was not until Ms. Camilleri saw Dr. Ruttle in July of 2005, that she ever reported using her left arm to catch herself on a counter. The accident and injury reports, as well as history to her many doctors, including Dr. Randolph, never said that the impact caused her to spin around requiring her to catch herself with
her left arm. This change in her story did not occur for many months. Thus, the required mechanism for such an injury did not occur or exist — i.e., falling or landing on an outstretched arm. Based on the testimony from Ms. Bauer, it is questionable if there was even a counter top in proximity to where this claimed event occurred. The glenoid labrum tear, if it exists, is not related to the work injury in question.
Like her neck, the Panel finds that at worst, she would have sustained a minor bump on her left arm and shoulder which would have resolved in a short period of time and certainly by June of 2005. 56. The Panel does not believe Ms. Camilleri has C.R.P.S. Drs. Ruttle and Ford opined that she does not have this condition. By a lack of notation, it appears that Dr. Gee does not believe she has this condition nor did the pain clinic in Billings. Dr. Randolph wrote and testified that her only symptom of this condition was exaggerated pain. Ms. Camilleri's skin was warm and dry. She does not have discoloration, swelling, abnormal sweating patterns, or vascular changes. Dr. Randolph has never seen a case of C.R.P.S. develop from an impact to the shoulder such as alleged in this case.
The AMA Guides to the Evaluation of Permanent Impairment (5th Edition) at Table 16-16 at pg. 496 provides
objective diagnostic criteria for C.R.P.S. An individual who meets eight or more of the criteria has probable C.R.P.S. If an individual has less than eight of the findings it is unlikely they are suffering from this condition. This table provides the following:
Local clinical signs:
Vasomotor changes:
• Skin color: mottled or cyanotic
• Skin temperature: cool
• Edema Pseudomotor changes:
• Skin dry or overly moist Trophic changes:
• Skin texture: smooth, nonelastic
• Soft tissue atrophy: especially in fingertips
• Joint stiffness and decreased passive motion
• Nail changes: blemished, curved, talon-like
• Hair growth changes: fall out, longer, finer
Radiographic signs:
• Radiographs: trophic bone changes osteoporosis
• Bone scan: findings consistent with C.R.P.S.
The only evidence that Ms. Camilleri has this condition is reported pain, which is subjective. None of the other diagnostic criteria are present. If Ms. Camilleri has some type of chronic pain, it is not from the work events in issue.
(Internal citations omitted; emphasis in original.)
[¶ 45] It should also be noted that this was a medically contested case heard by a panel of the Medical Commission. The panel members in this case included three physicians, two of whom were board certified. "The role of the Medical Commission is to resolve medically contested issues through the professional expertise of [healthcare] providers. The Commission's role includes determining the weight to be given to medical opinion testimony, and will not be reweighed upon review." Hurley v. PDQ Transport, Inc., 6 P.3d 134, 138 (Wyo. 2000) (citation omitted). The Medical Commission is not obligated to accept the findings of a medical expert if, in their expertise, the Commission determines that the factual basis for the medical opinion is not credible or reliable. Id. The findings of the Commission in this case demonstrate that it did not ignore Dr. Randolph's testimony. It fully considered his testimony, but found his opinion was not credible. The Commission's findings were not clearly erroneous and were supported by substantial evidence.
[¶ 46] As a final note, I also take exception to the majority's harsh criticism of the Commission for mentioning Dr. Randolph's potential financial interest in the outcome as a credibility factor. Arguably, this finding is not supported by substantial evidence because Dr. Randolph was never specifically asked if his medical bills had been paid and the Claimant testified that she was seeking "reimbursement" for medical bills that she, or her insurance company, had paid. It should be noted, however, that the financial interest of a witness in the outcome of a case is relevant to determining the bias of the witness.
Nor is it to be disputed that the court in its discretion may allow counsel to cross-examine an expert witness as to the amount he has received, is to receive, or expects to receive for treatment, examination or testifying, for such information has a possible bearing upon the witness's impartiality, credibility and interest in the result.
Grutski v. Kline, 352 Pa. 401,
43 A.2d 142 [1945];
Commonwealth v. Simmons, 361 Pa. 391,
65 A.2d 353 [1949];
Duffy v. Griffith, 134 Pa.Super. 447,
4 A.2d 170 [1939]; 70 C.J. 1158, pages 954, 955.
McNenar v. New York, C S.L.R. Co.,
20 F.R.D. 598, 600 (D.Pa. 1957). In any event, it is obvious that the Commission did not rely on this credibility factor to justify a total disregard of Dr. Randolph's testimony.
See, e.g., Glaze v. State ex rel. Wyo. Workers' Safety Comp. Div., 2009 WY 102, ¶ 29,
214 P.3d 228, 235 (Wyo. 2009).