Brees v. Gulley Enterprises, Inc.

• Decision Date: 05 May 2000
• Docket Number: No. 99-173.,99-173.
• Citation: 6 P.3d 128
• Parties: Dora BREES, Appellant (Petitioner), v. GULLEY ENTERPRISES, INC.; and State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellees (Respondents).
• Court: Wyoming Supreme Court

6 P.3d 128

Dora BREES, Appellant (Petitioner), v. GULLEY ENTERPRISES, INC.; and State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellees (Respondents).

No. 99-173.

Supreme Court of Wyoming.

May 5, 2000.

Representing Appellant: Donald L. Painter, Casper, Wyoming.

Representing Appellee Gulley Enterprises, Inc.: David A. Drell of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming.

Representing Appellee Wyoming Workers' Safety and Compensation Division: Gay Woodhouse, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; Bernard P. Haggerty, Senior Assistant Attorney General. Argument by Mr. Haggerty.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.

GOLDEN, Justice.

Appellant Dora Brees (Brees) appeals the denial of her claim for worker's compensation benefits and her motion for reconsideration after a hearing examiner determined that she had failed to prove the material aggravation of a pre-existing condition.

We affirm.

ISSUES

Brees presents these issues for our review:

1. Whether there was substantial evidence to support the determination of the hearing examiner denying compensability.

2. Whether the hearing examiner erred as a matter of law in denial of the Motion for Reconsideration.

Appellee Wyoming Workers' Safety and Compensation Division (Division) presents this single statement of the issue:

The Employee claimed she hurt her back on her third day at work; a Hearing Examiner denied benefits because of her prior back injuries and congenital back problems.

A. Was the Hearing Examiner's decision supported by substantial evidence and within her discretion?

Brees' employer, Appellee Gulley Enterprises, Inc. (Gulley), states the issues as:

1. Whether the Decision of the Office of Administrative Hearings denying benefits to the Employee-Claimant is supported by substantial evidence.

2. Whether the Decision of the Office of Administrative Hearings denying the Employee-Claimant's Motion for Reconsideration is supported by substantial evidence and not contrary to law.

FACTS

Brees claimed to have sustained a back injury on August 31, 1997, while performing her duties as a waitress. Brees was pushing a heavily laden cart that caught on something and held. She pushed and twisted the cart to free it and that motion caused pain in her back. She finished her shift; however, her pain increased and the next day her supervisor directed her to be examined at the local hospital. X-rays were taken and were not unusual; however, an MRI indicated bulging discs at two levels. She was treated and eventually referred to a neurosurgeon and underwent surgery for herniated discs at the L4-5 and L5-S1 levels. She applied for worker's compensation benefits, and the Division denied her benefits because of a pre-existing condition.

Brees had been seen for back pain following a slip and fall on ice on February 5, 1997, and treated conservatively with heat and medication. There was no suggestion of any need for surgery, and the x-rays of her lumbar spine were "unremarkable." Brees was also examined on March 17, 1997, for back and lower back pain and again no abnormalities were noted in the x-rays, and she was again treated with heat and medication.

At the hearing, Brees claimed that the back pain she experienced on February 5 was not an injury, and claimed that she was seen on March 17 for hip pain and not back pain. The Division and Gulley had a general surgeon, Dr. Greer, review the medical records, and he testified by deposition that the medical reports from February 5 and March 17 indicated Brees had complained of low back pain and pain radiating into her leg. He testified that these symptoms are consistent with nerve root damage and opined that Brees' injury was a chronic injury. Brees' neurosurgeon, Dr. Metz, testified by deposition, and in its conclusions of law, the hearing examiner ruled that Dr. Metz testified that Brees' condition was the result of the August 31, 1997, injury. The hearing examiner further concluded:

3.... That it was the testimony of Dr. Metz that he was not made aware that the Employee-Claimant had suffered from any pre-existing problems with her back....

4. That the opinion testimony provided by Dr. Metz clearly indicates that he was not aware of the extent of the events which occurred to the Employee-Claimant in February of 1997 or March, 1997, specifically including, but not limited to the description of the pain radiating down into her legs.

The hearing examiner concluded that Brees' failure to disclose the previous back problems resulted in her failure to meet her burden of proof to show by competent medical testimony that the August 31 injury aggravated a pre-existing condition.

Brees filed a motion for reconsideration "on grounds enumerated in subsections (a)(3), (5), and (7) under [W.R.C.P.] 59." A hearing was held on July 14, 1998, and the hearing examiner reiterated that Brees was seeking reconsideration under these grounds, and Brees did not disagree. Brees argued that Dr. Metz' testimony established that Dr. Metz knew of the prior injuries and it was his opinion that the August 31, 1997, incident resulted in an injury and caused the need for surgery. The hearing examiner determined that its decision to deny benefits was based on all of the testimony and denied the motion for reconsideration.

Brees filed a Petition for Review, and the district court issued a decision letter finding that Dr. Metz was made aware of Brees' previous back problems at the deposition, and determined that the hearing examiner's factual conclusion that Dr. Metz was not aware of Brees' prior back problems when he gave his medical opinion was not supported by the evidence. The court found that, in fact, Dr. Metz was made aware of those previous problems and had testified quite strongly that it was his medical opinion that the exertion of August 31, 1997, caused the medical condition for which he performed surgery. The district court determined that because Dr. Greer's opinion was not based on appropriate expertise and accurate facts, it should probably be completely disregarded. The district court, however, upheld the denial of the benefits because substantial evidence supported the conclusion that Brees had not materially aggravated a pre-existing condition. It found that Dr. Metz was never asked whether the incident on August 31 aggravated a pre-existing condition, but he did testify that people experience a wide variation in time from herniation of a disc to the onset of pain. Concluding that it could not be determined from the record whether Brees' August 31 injury aggravated a pre-existing condition, the district court upheld the determination that Brees failed to meet her burden of proof and sustained the hearing examiner's final conclusion. The district court considered whether grounds existed under Rule 59(a)(3), (5), or (7) warranting a new hearing and determined that the denial of the motion for reconsideration should be upheld. This appeal followed.

DISCUSSION

Standard of Review

When reviewing an administrative order, we are not compelled to accept any of the conclusions reached by the district court, and will review the case as if it had come directly to this Court from the agency. Howton v. State ex rel. Wyo. Workers' Comp. Div., 899 P.2d 869, 870 (Wyo.1995); Cronk v. City of Cody, 897 P.2d 476, 477 (Wyo.1995). Under the workers' compensation statutory scheme, an injury does not include "[a]ny injury or condition preexisting at the time of employment with the employer against whom a claim is made." Wyo. Stat. Ann. § 27-14-102(a)(xi)(F) (LEXIS 1999). A pre-existing condition may, however, be compensable if the employment aggravated, accelerated, or combined with the preexisting condition to produce the disability for which the employee is seeking benefits. Lindbloom v. Teton International, 684 P.2d 1388, 1390 (Wyo.1984) (quoting 1 Larson's Workmen's Compensation Law § 12.20 at 3-276). "The claimant has the burden of proving each essential element of her claim by a preponderance of the evidence." Hepp v. State ex rel. Wyo. Workers' Comp. Div., 881 P.2d 1076, 1078 (Wyo.1994).

On appeal, Brees does not contest the ruling that she has a pre-existing condition, and limits her appeal to the determination that Dr. Metz did not establish that the injury resulted in a material aggravation of the pre-existing condition. Whether a claimant's employment "aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact." Lindbloom, 684 P.2d at 1390. Brees had the burden of proving that the work-related injury materially aggravated the pre-existing injury resulting in a compensable injury. State ex rel. Wyo. Workers' Comp. Div. v. Fisher, 914 P.2d 1224, 1226-27, 1230 (Wyo.1996); Matter of Corman, 909 P.2d 966, 970 (Wyo.1996). In this case, the hearing examiner concluded in her initial order that Brees had failed in her burden to prove that her claimed injury resulted in a material aggravation of a preexisting condition. Although all parties present their arguments under a substantial evidence standard of review, we find that the hearing examiner's additional findings following the hearing on Brees' motion for reconsideration resulted in a decision affirming the conclusion that Brees had failed in her burden of proof.

When the party charged with the burden of proof has failed to meet that burden, we review the case under the arbitrary, capricious, abuse-of-discretion, or otherwise not in accordance with law standard. Keck v. State ex rel. Wyo. Workers' Comp. Div., 985 P.2d 430, 432 (Wyo.1999); City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995).

Under the arbitrary, capricious and abuse of discretion standard, we are charged with examining the entire record. Wyo. Stat. Ann. § 16-3-114(c) (Lexis 1999); Utech, 895 P.2d at 452. In

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