## Facts

- James Moss injured his lower back in March 2003 while working for Greene’s Energy Service when an auger struck a rock and threw him to the ground.
- Moss was diagnosed with an L5–S1 herniated disc, received temporary total disability benefits, and underwent back surgery in March 2004 with hardware implantation and later removal.
- Treating surgeon Dr. Mary Neal later reported significant work restrictions and, in 2006, certified Moss as permanently totally disabled and unable to return to gainful employment.
- At the Division’s request, Dr. Michael Kaplan evaluated Moss, found maximum medical improvement, assigned a 23% whole-person impairment rating, and opined Moss retained capacity for work; the Division paid permanent partial impairment benefits.
- Moss applied for permanent total disability (PTD) benefits; the Division denied the claim and the matter went to a contested case hearing before the Medical Commission.
- Moss pursued an “odd-lot” theory, offering evidence of physical limitations, asserted cognitive deficits reflected in a Social Security disability determination, and a job-search log showing applications to more than thirty jobs.
- The Division submitted surveillance video showing Moss doing yard work (including weed-eating, raking, and bending) and presented medical and vocational evidence indicating Moss could work and that jobs existed within his restrictions in the local market.
- The Medical Commission denied PTD, crediting the Division’s evidence, discounting aspects of Moss’s testimony and supporting opinions, and finding Moss failed to meet his burden.

## Issues

1. Whether the Medical Commission misapplied the odd-lot doctrine by failing to follow its burden-shifting evidentiary procedure in denying PTD benefits.
2. Whether substantial evidence supported the Medical Commission’s determination that Moss did not prove permanent total disability.

## Decision

- The Wyoming Supreme Court affirmed the district court and the Medical Commission’s denial of PTD benefits.
- The Court held the Commission recognized and applied the odd-lot framework and did not misallocate burdens.
- The Court held the Commission’s findings were supported by substantial evidence and were not arbitrary, capricious, or contrary to law.

## Legal Principles

- Under Wyoming’s odd-lot doctrine, a claimant may be deemed totally disabled if capable only of services so limited in quality, dependability, or quantity that no reasonably stable labor market exists for them.
- The claimant bears the initial burden to make a prima facie odd-lot showing using evidence of significant impairment plus vocational factors (e.g., age, education, training, and mental capacity), often supported by a diligent but unsuccessful job search.
- If a prima facie showing is made, the burden of production shifts to the Division to show that suitable light or special work is actually available; the claimant retains the ultimate burden of persuasion throughout.
- On review of an agency decision, courts defer to the agency’s fact-finding and credibility determinations and will not reweigh conflicting evidence if substantial evidence supports the result.

## Conclusion

The Wyoming Supreme Court upheld the denial of PTD benefits because the Medical Commission applied the odd-lot doctrine’s burden-shifting approach and, based on credited medical, surveillance, and vocational evidence showing work capacity and job availability, reasonably found Moss failed to carry his ultimate burden to prove permanent total disability.


Moss v. Wyo. Workers’ Safety & Comp. Div., 232 P.3d 1 (Wyo. 2010)