Dan's Supermarket v. Pate

• Decision Date: 02 November 2001
• Docket Number: No. 00-226.,00-226.
• Parties: DAN'S SUPERMARKET, Appellant (Petitioner), and State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division, Appellant (Petitioner), v. Constance K. PATE, Appellee (Respondent).
• Court: Wyoming Supreme Court

33 P.3d 1121

2001 WY 104

DAN'S SUPERMARKET, Appellant (Petitioner), and State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division, Appellant (Petitioner), v. Constance K. PATE, Appellee (Respondent).

No. 00-226.

Supreme Court of Wyoming.

November 2, 2001.

Kate M. Fox of Davis & Cannon, Cheyenne, Wyoming, Representing Appellant Dan's Supermarket.

Gay Woodhouse, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; David L. Delicath, Assistant Attorney General, Representing Appellant State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division. Argument by Mr. Delicath.

R. Douglas Dumbrill, Gillette, Wyoming, Representing Appellee.

Before LEHMAN, C.J., GOLDEN, HILL, and KITE, JJ.; and SPANGLER, D.J. (Retired).

GOLDEN, Justice.

[¶ 1] Appellants Dan's Supermarket (Employer) and the Wyoming Workers' Safety and Compensation Division (Division) challenge the payment of benefits to Appellee Constance K. Pate (Pate) for a 1996 work-related injury suffered while employed by Employer, contending that the hearing examiner improperly charged them with the burden of proving that Pate had suffered a new injury while working for another employer. Following a hearing, the hearing examiner ruled that Pate had suffered a continuation of pain symptoms from the 1996 injury, and the district court certified the case to this Court pursuant to W.R.A.P. 12.09(b).

[¶ 2] We hold that the hearing examiner properly determined that Pate had sustained her burden of proving all essential elements of her claim, and that the evidence supports the award of benefits. The order granting benefits is affirmed.

ISSUES

[¶ 3] The statement of issues presented by Employer are:

(1) Did the hearing examiner apply an incorrect rule of law when he imposed the burden of proof in this contested case on the former employer and not on the Claimant?

(2) Is the decision of the hearing examiner unsupported by substantial evidence, without consideration and in disregard of the facts and circumstances?

The statement of the issues presented by the Division are:

1. Did the Hearing Examiner err by improperly relieving Ms. Pate of her burden of proving every element of her claim?

2. Is the Hearing Examiner's finding that there was no material aggravation of Ms. Pate's prior injury arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law?

Appellee Pate believes that the issues are:

1) Did Constance K. Pate suffer symptoms and incur medical bills which were the natural and expected effects of her work-related injury and its required surgeries?

2) Should the Employer and the State be granted an indulgence in workers' compensation procedures by relieving them from their due process burden of proving affirmative allegations?

FACTS

[¶ 4] While working for Dan's Supermarket in 1996, Pate suffered a work-related injury that required back surgery. Employer did not contest coverage of the injury, and benefits and a permanent partial disability award were paid. Ongoing pain led to two more surgeries including fusion surgery. She continued to suffer occasional pain when doing housecleaning or other chores and saw her doctor in June of 1998 for back pain symptoms. She returned to work in May of 1999, taking a job at a local convenience store, and on September 16, 1999, while moving boxes, she experienced more back pain. She continued to work that day and sought medical attention later that month, telling doctors about the pain she experienced that day. The pain resolved with little treatment, and tests indicated that no new injury had occurred. She filed a claim with the convenience store's private insurer of workers' compensation,¹ but it did not respond to her claim. She then filed a claim with the Division which viewed her injury as new and denied her benefits. [¶ 5] The hearing examiner determined that Pate's preexisting condition was a work-related injury that was established as a matter of fact, and the issue was whether Pate's claim was a continuation of her 1996 work-related injury for which the Division was responsible or a new injury that required Pate to file a claim with the convenience store's private insurer. It further determined that the Division and Employer bore the burden of proving that the injury resulted from a new work-related condition and was not the result of the preexisting condition caused by her 1996 work-related injury. The Division and the Employer presented evidence in an attempt to establish that Pate's injury was a sufficient material aggravation of her preexisting condition to require that it be considered a new injury.

[¶ 6] The hearing examiner reviewed the evidence and determined that a radiological report indicated that no new injury had occurred and found that report was supported by Pate's testimony that she had experienced chronic pain since the 1996 injury and the testimony of two doctors explaining that Pate's symptoms were typical of those experienced by people who have had multiple back surgeries including fusion. The hearing examiner found that one doctor explained that Pate's migratory and intermittent pain could be caused by the scar tissue resulting from the multiple surgeries and that the scar tissue would cause some impingement upon the roots of the sciatic nerves. The hearing examiner ruled that this explanation was confirmed by the radiology report. It also found that no doctor had found evidence of a new injury.

[¶ 7] The Division and Employer submitted authority that they contended supported finding that, while lifting boxes, Pate aggravated the old injury in such a material way that legally it constituted a new injury. The hearing examiner examined that authority and determined that all the cases were fact-driven and did not articulate a bright-line test to make such a determination. It found that the authority did not require it to decide that Pate had suffered a new injury. The Division was ordered to pay Pate's medical bills for lower back treatment and diagnosis incurred. This appeal followed.

DISCUSSION

Standard of Review

[¶ 8] Allocation of the burden of proof is a matter of law. Corman v. State ex rel. Wyo. Workers' Comp. Div., 909 P.2d 966, 970 (Wyo.1996). Conclusions of law of an administrative agency are affirmed if they are found to be in accordance with law. Id.; Cordova v. Holly Sugar Corp., 882 P.2d 880, 882 (Wyo.1994); Aanenson v. State ex rel. Workers' Comp. Div., 842 P.2d 1077, 1079 (Wyo.1992).

[¶ 9] 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' Safety and 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) (LexisNexis 2001); Utech, 895 P.2d at 452. In our examination and review of a hearing examiner's determination, we defer to the hearing examiner's findings of fact. We will examine conflicting and contradictory evidence to see if the hearing examiner reasonably could have made its findings based on all the evidence before it. The findings of fact may include determinations of witness credibility, as the hearing examiner is charged with determining the credibility of the witnesses. In our review, we will not overturn the hearing examiner's determinations regarding witness credibility unless they are clearly contrary to the overwhelming weight of the evidence. Hurley v. PDQ Transport, Inc. 6 P.3d 134, 137 (Wyo.2000).

[¶ 10] When we review mixed questions of law and fact, our standard has been stated this way:

When an agency's determinations contain elements of law and fact, we will not treat them as findings of fact. We extend deference only to agency findings of "basic fact." When reviewing a finding of "ultimate fact," we divide the factual and legal aspects of the finding to determine whether the correct rule of law has been properly applied to the facts. If the correct rule of law has not been properly applied, we do not defer to the agency's finding but correct the agency's error in either stating or applying the law.

Union Pacific R.R. Co. v. State Bd. of Equalization, 802 P.2d 856, 860-61 (Wyo.1990).

[¶ 11] We review an administrative agency's findings of fact by applying the substantial evidence standard. Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Frontier Refining, Inc. v. Payne, 2001 WY 49, ¶ 6, 23 P.3d 38, ¶ 6 (Wyo.2001). Accordingly, "we examine only the evidence which favors the prevailing party, allowing every favorable inference, while omitting consideration of any conflicting evidence." Id.

Burden of Proving a New Injury

[¶ 12] The Employer first takes issue with the hearing examiner's statement that "[i]t doesn't matter who has the burden of proof; that pre-existing condition has been established as a matter of fact." Employer claims that our decisions involving similar facts indicate this statement is an incorrect statement of the law and the hearing examiner's decision should be reversed.

[¶ 13] The hearing examiner found:

The Claimant was injured while working for Dan's Supermarket in 1996. She probably suffered from pre-existing lower spine weakness and degeneration which was worsened by lifting inventory at work for that employer. She underwent a series of back surgeries following that injury and received a permanent partial disability

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