Fisher, Matter of

Decision Date17 April 1996
Docket NumberNo. 95-255,No. O,O,95-255
Citation914 P.2d 1224
Parties109 Ed. Law Rep. 403 In the Matter of the Worker's Compensation Claim of Rosie E. FISHER, an Employee of Laramie County School Districtne. STATE of Wyoming ex rel. WYOMING WORKERS' COMPENSATION DIVISION, Appellant (Respondent), v. Rosie E. FISHER, Appellee (Claimant).
CourtWyoming Supreme Court

William U. Hill, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Jennifer A. Evans, Assistant Attorney General, Representing the Appellant.

Robin Sessions Cooley of Bishop & Cooley, LLC, Cheyenne, Representing the Appellee.

Before THOMAS, MACY, TAYLOR and LEHMAN, JJ., and GARY P. HARTMAN, D.J.

MACY, Justice.

Appellee Rosie Fisher (the claimant) sought review in the district court of the hearing examiner's order which denied her request for worker's compensation benefits. The district court reversed the hearing examiner's order, finding that the claimant was entitled to receive benefits. Appellant State of Wyoming, on behalf of the Wyoming Workers' Compensation Division, appeals from the district court's order which reversed the hearing examiner's decision.

We reverse.

ISSUE

The Workers' Compensation Division presents the following issue for our review: 1

A. Whether the record supports the hearing examiner's determination that Claimant's employment did not materially aggravate her preexisting back condition.

FACTS

The claimant suffers from degenerative disc disease and has endured back pain since 1967. She began working for Laramie County School District No. One in 1989 as a school bus driver and as a general maintenance person. Her employment duties included driving a bus, painting, driving a lawn mower, and performing miscellaneous other tasks.

In August of 1991, the claimant filed a claim for worker's compensation benefits, reporting that she had injured her lower back while she was painting. The Workers' Compensation Division denied her claim on the grounds that her back condition was preexisting and unrelated to her job. The claimant did not object to this determination.

On October 8, 1993, the claimant filed a second report of injury, again claiming that she had injured her lower back. On this report, the claimant indicated that this injury occurred over a period of time and resulted from her continuous bus driving and riding on the lawn mower. The Workers' Compensation Division again denied the claim on the grounds that her injury was preexisting and not related to her job. The claimant objected, and a hearing was held before the Office of Administrative Hearings. Following that hearing, the hearing examiner denied the claimant's claim for benefits, finding that the claimant had not materially aggravated her back condition as a result of her employment and that, therefore, the 1993 injury was not compensable.

The claimant appealed from the hearing examiner's decision, and the district court remanded the case back to the Office of Administrative Hearings for additional findings, which the hearing examiner subsequently issued. The district court thereafter reversed the hearing examiner's decision to deny benefits, finding that the decision was arbitrary, capricious, an abuse of discretion, and not supported by substantial evidence. The Workers' Compensation Division appealed from the district court's order.

STANDARD OF REVIEW

When we review an administrative order, we are not compelled to accept any of the conclusions reached by the district court. Instead, we review the case as if it had come directly to this Court from the agency. Howton v. State ex rel. Wyoming Worker's Compensation Division, 899 P.2d 869, 870 (Wyo.1995); Cronk v. City of Cody, 897 P.2d 476, 477 (Wyo.1995).

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 v. Teton International, 684 P.2d 1388, 1390 (Wyo.1984) (quoting 1 LARSON'S WORKMEN'S COMPENSATION LAW § 12.20 at 3-316)). We review factual issues by applying the substantial evidence standard. WYO.STAT. § 16-3-114(c)(ii)(E) (1990).

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.

Latimer v. Rissler & McMurry Co., 902 P.2d 706, 708-09 (Wyo.1995).

DISCUSSION

The Workers' Compensation Division asserts that substantial evidence supported the hearing examiner's determination. The claimant maintains that she materially aggravated her preexisting back condition over an extended period of time as a result of her work related activities and that the hearing examiner's decision was arbitrary, capricious, an abuse of discretion, and not supported by substantial evidence.

" 'In order to prevail before the hearing examiner, [the employee is] charged with demonstrating an injury, arising from [her] employment, while at work.' " Hepp v. State ex rel. Wyoming Workers' Compensation Division (xi) "Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business. "Injury" does not include:

881 P.2d 1076, 1079 (Wyo.1994) (quoting Jaqua v. State ex rel. Wyoming Workers' Compensation Division, 873 P.2d 1219, 1221 (Wyo.1994)). Preexisting conditions are excluded from the definition of "injury" in WYO.STAT. § 27-14-102(a)(xi)(F) (Supp1995):

. . . . .

(F) Any injury or condition preexisting at the time of employment with the employer against whom a claim is made[.]

A preexisting injury may present a compensable claim " 'if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the ... disability for which compensation is sought.' 1 Larson's Workmen's Compensation Law, § 12.20, p. 3-276." Lindbloom, 684 P.2d at 1390. A claim for aggravation of a preexisting injury requires proof that the "work effort contributed to a material degree to the precipitation, aggravation or acceleration of the existing condition of the employee." 684 P.2d at 1389-90. See also Romero v. Davy McKee Corporation, 854 P.2d 59, 61 (Wyo.1993).

For injuries which have allegedly occurred over an extended period of time, the claimant has a heightened burden of proof:

(a) The burden of proof in contested cases involving injuries which occur over a substantial period of time is on the employee to prove by competent medical authority that his claim arose out of and in the course of his employment and to prove by a preponderance of evidence that:

(i) There is a direct causal connection between the condition or circumstances under which the work is performed and the injury;

(ii) The injury can be seen to have followed as a natural incident of the work as a result of the employment;

(iii) The injury can fairly be traced to the employment as a proximate cause;

(iv) The injury does not come from a hazard to which employees would have been equally exposed outside of the employment; and

(v) The injury is incidental to the character of the business and not independent of the relation of employer and employee.

WYO.STAT. § 27-14-603(a) (Supp.1995).

"The claimant has the burden of proving each essential element of her claim by a preponderance of the evidence." Gilstrap v. State ex rel. Wyoming Workers' Compensation Division, 875 P.2d 1272, 1273 (Wyo.1994). "The party who appeals from an administrative determination has the burden of proving the lack of substantial evidence to sustain the ruling of the agency." Jaqua, 873 P.2d at 1221.

The hearing examiner found in pertinent part:

1. [The claimant] has had back problems since 1967. For the most part, those problems have not been sufficiently severe to cause incapacitation.

2. In 1989, [the claimant] became employed by Laramie County School District No. One, where she worked as a bus driver during the school year and as a painter and maintenance worker during the summer months. She continued in that same employment at least through August 26, 1993.

3. In the summer of 1991, [the claimant] suffered an acute occurrence of back pain that was of sufficient severity that she was hospitalized for several days. The onset of the back pain occurred at her home[;] however, [the claimant] had experienced increased back pain for two weeks prior to the acute episode and she believed that her back problem was related to the painting she was then doing at work.

4. [The claimant] filed a workers' compensation claim for the 1991 injury. That claim was denied by the [Workers' Compensation] Division for the reason that the injury was not work related. The [Workers' Compensation] Division advised [the claimant] at that time that she could ask for reconsideration of the claim by a hearing examiner.... [The claimant] did not object to the [Workers' Compensation] Division's determination and did not request a hearing on the claim. Although she continued to have back pain, [the claimant] returned to work shortly after the 1991 injury.

5. On August 26, 1993, [the claimant] again suffered an acute episode of back pain. The 1993 episode occurred following a day of in-service training where [the claimant] spent most of a full day sitting.

6. [The claimant] has degenerative disc disease and has a very bad back, with multiple levels of bad discs in both her neck and back. Examinations in both 1...

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