Everheart, Matter of

• Decision Date: 24 April 1998
• Docket Number: No. 97-109,97-109
• Citation: 957 P.2d 847
• Parties: In the Matter of the Worker's Compensation Claim of Edward S. EVERHEART, an Employee of S & L Industrial. Edward S. EVERHEART, Appellant (Petitioner), v. S & L INDUSTRIAL, and State of Wyoming ex rel. Wyoming Workers' Safety And Compensation Division, Appellees (Respondents).
• Court: Wyoming Supreme Court

Page 847

957 P.2d 847

In the Matter of the Worker's Compensation Claim of Edward S. EVERHEART, an Employee of S & L Industrial Edward S. EVERHEART, Appellant (Petitioner), v. S & L INDUSTRIAL and State of Wyoming ex rel. Wyoming Workers' Safety And Compensation Division, Appellees (Respondents).

No. 97-109.

Supreme Court of Wyoming.

April 24, 1998.

Scott E. Kolpitcke of Cook and Associates, P.C., Laramie, for Appellant.

William U. Hill, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Bernard P. Haggerty, Assistant Attorney General, for Appellee State of Wyoming.

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

MACY, Justice.

The hearing examiner denied the claim for worker's compensation benefits which was submitted by Appellant Edward Everheart (the employee). The employee filed a petition with the district court for a review of the hearing examiner's decision, and the district court certified the case to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b).

We affirm the hearing examiner's decision.

ISSUES

The employee presents the following issues for our review:

I. Whether the Office of Administrative Hearings acted arbitrarily and capriciously by incorrectly applying the law to the facts of this case with regard to the burden of proof and by disregarding expert medical testimony?

II. Whether the Office of Administrative Hearings' decision that the [employee] did not meet his burden of proof is supported by substantial evidence?

III. Whether the Office of Administrative Hearings acted arbitrarily and capriciously when it denied worker['s] compensation benefits to the [employee] without providing an opportunity for [the employee] to appear in person to resolve issues of credibility as the Office agreed to do?

FACTS

The employee worked for Appellee S & L Industrial (the employer) as a traffic flagger for construction that was ongoing in Telephone Canyon. He claims that on September 6, 1996, his shoulder was injured when a truck hit a traffic barrel and the barrel hit him and knocked him to the ground. The employee went to the emergency room where he was given pain medication and a sling. He subsequently visited Michael Wasser, M.D., who diagnosed him with having an acromioclavicular joint separation. Dr. Wasser thereafter surgically repaired the employee's shoulder.

The employee filed a claim for worker's compensation benefits on September 16, 1996. The employer objected to the claim, and the case was referred to the Office of Administrative Hearings for a contested case hearing. At the outset of the hearing, the hearing examiner remarked that the employee's credibility seemed to be a major issue. She asked the employee if he would object to the hearing being conducted by telephone. The employee agreed to proceed by telephone "with the one stipulation ... that if any questions of credibility remain, we could leave these proceedings open for further questioning in person." The hearing examiner agreed to leave the proceedings open for in-person questioning if questions regarding the employee's credibility remained at the end of the hearing.

During the hearing, the parties presented conflicting testimony about what occurred on September 6, 1996. The employee testified in the following manner about the alleged incident: He signaled a truck to slow down because it was traveling at approximately sixty miles per hour. In response, the truck driver "flipped [him] off" and swerved the truck so that the trailer whipped and hit a traffic barrel. The barrel flew up and hit the employee in his mid-section, knocking him down on his shoulder. Although he was injured and on the ground, he managed to pivot himself so that he could read the letters "ABF" and the number "53113" on the back of the truck even though he was not wearing his eyeglasses at the time. Upon regaining his composure, he got up, replaced the barrel, and continued flagging until he was relieved one to two hours later.

The employee further testified that, on the night before the incident, he and his foreman went to the Buckhorn Bar where he drank Pepsi-Cola. The next morning, his foreman woke him and took him to work. He also testified that, as a result of being knocked to the ground, he ripped the shoulder and elbow of his jacket and that he was crying when he spoke with his foreman after the incident. He said that, after the incident, his foreman took him to his vehicle which was in Laramie and that, on the way, the foreman advised the employee to get a lawyer.

The foreman offered a substantially different account. He testified that he and the employee went to the Buckhorn Bar on the night before the alleged incident occurred and that they both consumed a couple of beers. He stated that the employee did not ride to work with him the next day but, rather, that he asked the employee to come to work when he realized he was shorthanded. He also said that he did not notice torn clothing and that the employee was not crying when he reported the alleged incident to him. Finally, he denied having advised the employee to get an attorney.

A co-worker who saw the employee after the alleged incident testified that she did not notice torn clothing, dirt, or anything which would indicate that the employee was knocked to the ground and injured. Another co-worker testified that the employee initially informed her that the truck was traveling sixty-five miles per hour but that he later told her the truck was going only forty-five miles per hour. She further stated that she discovered the employee had submitted two employment applications to the company and that the applications included conflicting information.

The employee presented an affidavit from Dr. Wasser which stated that the employee's injury was consistent with his description of the incident and that it was "unlikely that [the employee] could have suffered this injury prior to reporting to work on September 6, 1996, due to the amount of pain [the employee] suffered from this injury." Dr. Wasser based his opinion on the employee's version of how his injury occurred. He also felt that the employee would not have been able to report to work if the injury had occurred before then because he would not have been able to tolerate the pain.

The employee also presented the testimony of the highway patrolman who investigated the incident. The highway patrolman stated that, upon completing his investigation, he issued a reckless driving citation to the truck driver. He testified that he had less than a year of experience at the time of the incident and admitted under cross-examination that he relied largely on the employee's version of the incident in reaching his conclusions. He also admitted that, although the barrel had scuff marks on it, he did not conduct tests to determine their age; that it was not uncommon for barrels to be hit at the worksite; and that the barrel could have been hit on a different day.

The truck driver testified that, during his thirty-two years of driving a truck, he had never been in an accident and that he had received annual safety awards. He also testified that he was driving approximately twenty-five miles per hour through the canyon. He explained that he was not angry or aggravated and that he did not "flip [anyone] off" or swerve toward anyone. He also stated that he absolutely did not hit a barrel.

The parties stipulated to the admission of the written statement of a second truck driver who was following the first truck through Telephone Canyon on September 6, 1996. The second truck driver stated that he was traveling at a speed of approximately twenty to twenty-five miles per hour and that the distance between his truck and the first truck seemed to stay the same. He also stated that he was about one-half to three-fourths of a mile behind the first truck and that he did not see the first truck swerve and hit a traffic barrel or anyone lying on the ground.

The truck driver's supervisor testified that he had known the truck driver since 1984. He said that the truck driver had a perfect record with ABF and that he had not had an accident or citation. He also explained that, assuming the truck was traveling at sixty miles per hour, it would have been about eighty feet away from the employee one second after it passed him. He also said that the letters and numbers on the back of the truck are four inches high and that it would be difficult for someone to read them at that distance.

In her order, the hearing examiner concluded that the employee failed to meet his burden of proof and denied his request for benefits:

14. Because of the wide divergence in the testimony presented in this case, it is incumbent upon this Office to assess the credibility of the witnesses in order to determine if Claimant has met his burden of proof. Based upon a review of all the evidence and testimony, this Office finds that the testimony of [the foreman, both truck drivers, and the truck drivers' supervisor] is the more credible and that Claimant has therefore failed to meet the required burden of proof. The numerous inconsistencies occurring in this case seriously jeopardizes the credibility of the Claimant. The Claimant's testimony that the semi was travelling in excess of 65 miles per hour, that the driver intentionally swerved his 80,000 pound rig at him and that this action did not result in tragic consequences is incredible. The Claimant's testimony that he could read the numbers on a truck travelling 88 feet per second, without his glasses, and after being knocked to the ground, is even more incredible. Couple this with a truck driver who has been driving for a living for 32 years without so much as a citation, greater doubt is created in Claimant's version of the events in this case. Add the testimony of [the foreman] who contradicted Claimant's testimony from the events of the evening...