Casper Oil Co. v. Evenson

• Decision Date: 12 January 1995
• Docket Number: No. 94-113,94-113
• Citation: 888 P.2d 221
• Parties: CASPER OIL COMPANY, Appellant (Employer/Petitioner), v. David EVENSON, Appellee (Employee/Respondent).
• Court: Wyoming Supreme Court

Page 221

888 P.2d 221

CASPER OIL COMPANY, Appellant (Employer/Petitioner), v. David EVENSON, Appellee (Employee/Respondent).

No. 94-113.

Supreme Court of Wyoming.

Jan. 12, 1995.

Stephenson D. Emery of Williams, Porter, Day & Neville, Casper, for appellant.

Donald L. Painter, Casper, for appellee.

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

TAYLOR, Justice.

In this worker's compensation case, we review the sufficiency of the evidence supporting a hearing examiner's award of temporary total disability benefits to appellee. Appellant petitioned the district court for review of the decision. The district court upheld the hearing examiner's award.

We affirm.

I. ISSUES

Appellant states the issues in the following form:

1. Because Appellee (hereinafter "Mr. Evenson") received previous awards of workers' compensation benefits for his lower back injury, including an award for permanent disability, the Office of Administrative Hearings (hereinafter "Office") acted contrary to law by not applying W.S. 27-14-605(a), which required Mr. Evenson to prove that he suffered an increase in incapacity in 1993 due solely to his 1989 lower back injury.

2. Because Mr. Evenson sustained a loss of earnings for reasons unrelated to any back injury or disability, the Office acted contrary to law in awarding him temporary total disability benefits. 1C Larson, The Law of Workmen's Compensation, Sec. 57.64(a) (1992).

3. The Office acted contrary to law by ignoring W.S. 27-14-404(b), which, after a previous award for permanent partial disability, allows additional awards of temporary total disability benefits only in connection with uncontemplated additional surgeries.

4. By refusing to admit substantial relevant evidence regarding Mr. Evenson's character for untruthfulness, the Office violated W.R.E. 608(a), and denied Appellant (hereinafter "C-Plus") an opportunity for a full contested hearing case.

(Emphasis in original.)

Appellee states the issues in the following manner:

1. Whether there is sufficient evidence to support the decision of the Office of Administrative Hearings and its affirmance by the District Court.

2. Although not framed as an issue by Appellant, Appellant nevertheless argued the affirmative of:

Whether termination after a compens[a]ble injury for acts claimed to have occurred prior to injury bar a claim for temporary total disability benefits.

II. FACTS

Casper Oil Company (Casper Oil) owned and operated a chain of convenience stores known as Convenience-Plus (C-Plus). In 1989, David Evenson (Evenson) was employed as a manager of the C-Plus store in Laramie, Wyoming. Evenson injured his back while removing snow and ice from in front of the Laramie store in March of 1989.

On June 19, 1989, Evenson underwent back surgery to repair a herniated disk. As a result of that surgery, Evenson received temporary total disability benefits and a thirteen percent permanent partial physical impairment award. Those awards are not challenged in this appeal.

Evenson slipped and fell at home in January of 1990. Evenson reported the fall to his doctor and said that the fall had aggravated his back injury. Evenson testified that the pain in his back had steadily increased after the 1989 surgery. He complained of continued pain in his lower back during a visit with his doctor on July 10, 1990. Evenson was referred to Dr. Donner, a spine sub-specialist.

Three weeks prior to his scheduled appointment with Dr. Donner, Evenson began to experience a sharp stabbing pain in his back and burning and aching pains in his thigh. Evenson visited Dr. Donner on August 2, 1990. Dr. Donner treated the symptoms In June of 1992, Evenson went to the emergency room at the Lander Valley Hospital in Lander, Wyoming. An x-ray was taken of Evenson's back and physical therapy was again prescribed. Following complaints that his back was continuously sore, Evenson was referred to the new spine specialist in the practice, Dr. Douglas W. Beard. Dr. Beard met with Evenson on February 8, 1993. Dr. Beard diagnosed Evenson as suffering from degenerative disk disease. He recommended that Evenson undergo fusion surgery. The fusion surgery was performed on March 18, 1993.

with aggressive physical therapy and a nonsteroidal anti-inflammatory agent.

Dr. Beard testified that the degenerative disk disease manifested itself after the original injury in 1989. He also testified that Evenson's fall in January of 1990 may have been a factor that aggravated his injury, but that "fall[ing] once does not bring about these types of changes." Dr. Beard's conclusion was that the 1993 fusion surgery was a direct result of the 1989 injury.

III. DISCUSSION

The primary issue in this appeal is whether there was sufficient evidence to support the hearing examiner's determination that Evenson's 1993 fusion surgery was linked to his initial back injury in 1989 and was, therefore, a subsequent compensable injury for which the hearing examiner could properly award medical benefits and temporary total disability benefits.

STANDARD OF REVIEW

An administrative agency's order will be set aside if it is not supported by substantial evidence. Wyo.Stat. § 16-3-114(c)(ii)(E) (1990); Majority of Working Interest Owners In Buck Draw Field Area v. Wyoming Oil and Gas Conservation Com'n, 721 P.2d 1070, 1079 (Wyo.1986). Substantial evidence is relevant evidence that a reasonable mind can accept as adequate to support an agency's conclusion. Montana Dakota Utilities Co. v. Public Service Com'n of Wyoming, 847 P.2d 978, 983 (Wyo.1993). The party challenging an agency's decision bears the burden of proving that the decision is not supported by substantial evidence. Devous v. Wyoming State Bd. of Medical Examiners, 845 P.2d 408, 414 (Wyo.1993). If an agency's decision is supported by substantial evidence, it will only be reversed for errors of law. Id.

SECOND COMPENSABLE INJURY RULE

Casper Oil argues that the second compensable injury rule is dead. The basic rationale behind the second compensable injury rule is well stated in Scullion, 62 P.2d at 539:

[I]t seems to us palpably unjust to the employee to deny him compensation because he has tried to keep his place on the employer's pay roll by doing his regular work and then has found that conditions produced at the time of the accident, and which medical science could not recognize or whose final consequences it could not forecast, have gradually and ultimately produced a compensable injury. We do not think the language employed in the law by our State Legislature was reasonably intended to produce any such result.

This rationale remains persuasive and we apply it in our analysis today. See, Matter of Krause, 803 P.2d 81, 82 (Wyo.1990); Pacific Power & Light Co. v. Rupe, 741 P.2d 609, 610 (Wyo.1987); State ex rel. Wyoming Workers' Compensation Div. v. Malkowski, 741 P.2d 604, 605 (Wyo.1987); Matter of Barnes, 587 P.2d 214, 218-19 (Wyo.1978) and Baldwin v. Scullion, 50 Wyo. 508, 530-31, 62 P.2d 531, 539 (1936).

Matter of Barnes, 587 P.2d 214 is remarkably similar to the case before us. Barnes was injured in 1967 and filed a timely claim. Id. at 215. Barnes suffered an acute back strain and his physician noted that if his back trouble continued, a spinal fusion would be required. Id. at 216. Barnes underwent fusion surgery in February of 1976. Id. He filed a petition to reopen his case in June of 1976. Id. Attached to the petition was a note from his physician that stated, " 'Mr. Barnes [sic] present condition is the result of his original injury on 3/29/67.' " Id.

Following a hearing, Barnes was awarded hospital and medical benefits as well as benefits for temporary total disability. Id. at 217. The Worker's Compensation Division objected and appealed to the district court, arguing that the claim was time barred. Id. This court affirmed the award and quoted from the district court's order:

" * * * [T]he Court finding that the claim of the petitioner concerns on-going treatment necessitated by the petitioners [sic] previous injury on March 29, 1967 and that all proper claims are allowable.

"IT IS THEREFORE ORDERED that the petition to reopen is not necessary and that all proper claims presented by the petitioner shall be allowed as part of the petitioners [sic] original claim."

Id.

Significantly, Barnes was not required to reopen his case. Casper Oil argues that Evenson must reopen his case. Evenson is not required to do so. Like Barnes, Evenson suffered a second compensable injury. When an employee suffers a second compensable injury, the employee is not required to reopen the original case.

An industrial accident can give rise to more than one compensable injury. See, Rupe, 741 P.2d at 610; Malkowski, 741 P.2d at 605; Matter of Barnes, 587 P.2d at 218; and Scullion, 62 P.2d at 539. When this principle is applied to the present case, there is no way to distinguish Evenson's injury and his multiple surgeries from the cases cited above. Evenson's back injury, followed by fusion surgery, is identical to the situation in Matter of Barnes, and is very similar to the facts in Rupe and Malkowski. In each case, a man suffered an injury during his employment which required relatively immediate medical attention for which he was promptly compensated. Rupe, 741 P.2d at 610; Malkowski, 741 P.2d at 604; Matter of Barnes, 587 P.2d at 216; Scullion, 62 P.2d at 539. Each man then required additional surgery at a later date and was ultimately awarded benefits under the second compensable injury rule. Rupe, 741 P.2d at 610; Malkowski, 741 P.2d at 605-06; Matter of Barnes, 587 P.2d at 219; Scullion, 62 P.2d at 532.

The second compensable injury rule is applicable to Evenson, and he is entitled to temporary total disability benefits. Evenson's 1993 fusion surgery constitutes a second compensable injury for which the award of temporary total disability benefits is appropriate.

SECOND SURGERY NOT REASONABLY CONTEMPLATED

Casper...