Hepp v. State ex rel. Wyoming Workers' Compensation Div.
| Decision Date | 23 September 1994 |
| Docket Number | No. 94-20,94-20 |
| Citation | 881 P.2d 1076 |
| Parties | Letty K. HEPP, Appellant (Petitioner Employee-Claimant), v. The STATE of Wyoming ex rel. WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Respondent Objector-Defendant), and Bazel's Diner, Appellee (Respondent Employer-Defendant). |
| Court | Wyoming Supreme Court |
Rene Botten of Northern Wyoming Law Associates, Sheridan, for appellant.
Kenneth E. Spurrier, Sr. Asst. Atty. Gen., for appellee Wyoming Workers' Compensation Div.
M. Greg Carlson of Drew & Carlson, Gillette, for appellee Bazel's Diner.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.
Appellant Letty K. Hepp sought review in the district court of the hearing examiner's order which denied her request for worker's compensation benefits. The district court certified the case to the Supreme Court for review.
We affirm.
Hepp presents the following issues:
I. Is the Findings of Fact, Conclusions of Law and Order of the administrative law judge denying the award of benefits arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law?
II. Is the Findings of Fact, Conclusions of Law and Order of the administrative law judge denying the award of benefits unsupported by substantial evidence and contrary to the weight of the evidence?
Hepp was employed as a cook for Appellee Bazel's Diner in Sheridan, Wyoming. On April 29, 1993, Hepp reported to her supervisor that she had injured her back when, as part of her work duties, she lifted a rubber floor mat. Although she continued to experience pain, she completed her work shift at the restaurant.
After Hepp had left work, a friend took her to the emergency room at a local hospital. The emergency room physician examined her and concluded that she had suffered a severe muscle strain with some possible nerve involvement.
The next day, Hepp filed her report of injury and requested worker's compensation benefits. She indicated in her report that, while she was at work, she had injured her neck, left arm, and lower back. On May 5, 1993, Bazel's Diner filed its report in which it asserted that Hepp's injury had not occurred while she was at work.
The Workers' Compensation Division denied Hepp's application for worker's compensation benefits, stating: Hepp objected to the Workers' Compensation Division's determination and requested that a contested case hearing be held so that a determination could be made as to whether she was entitled to receive benefits.
A contested case hearing was held in September 1993. Hepp presented several witnesses who testified that, to their knowledge, Hepp had not been injured before the April 29, 1993, incident which occurred while she was at work. The Workers' Compensation Division called S. Kit Carson, D.C., a chiropractor, as a witness, and he testified that he had treated Hepp five times between April 13, 1993, and April 29, 1993, for discomfort in her neck, left shoulder, and arms.
The hearing examiner issued his decision letter on November 8, 1993, in which he ruled that Hepp was not entitled to receive worker's compensation benefits. He found that some of Hepp's witnesses were not credible and that those who were credible generally did not testify about matters of substance. Subsequently, an order entitled "Findings of Fact, Conclusions of Law and Order," which incorporated the rulings made in the decision letter, was entered.
Hepp filed her petition for review of the hearing examiner's decision with the district court, and the district court certified the case to us pursuant to W.R.A.P. 12.09(b).
Hepp contends that two issues exist on appeal. However, we are convinced that, after having reviewed her arguments, only one issue exists: Whether substantial evidence supported the hearing examiner's conclusion that Hepp did not meet her burden of proving that her injury occurred during the course of her employment.
When we are reviewing cases which have been certified to us pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to the reviewing court of the first instance. Pinther v. State Department of Administration and Information, 866 P.2d 1300, 1302 (Wyo.1994). Whether an employee's injury occurred in the course of her employment is a question of fact. See Dougherty v. J.W. Williams, Inc., 820 P.2d 553 (Wyo.1991). We review factual issues by applying the substantial evidence standard. WYO.STAT. § 16-3-114(c)(ii)(E) (1990).
Romero v. Davy McKee Corporation, 854 P.2d 59, 61 (Wyo.1993) (citing Farman v. State ex rel. Wyoming Workers' Compensation Division, 841 P.2d 99, 102 (Wyo.1992)).
Bearden v. State ex rel. Wyoming Workers' Compensation Division, 868 P.2d 268, 269 (Wyo.1994), quoted in Gilstrap v. State ex
rel. Wyoming Workers' Compensation Division, 875 P.2d 1272, 1273 (Wyo.1994). "The claimant has the burden of proving each essential element of her claim by a preponderance of the evidence." 875 P.2d at 1273 (citing Leonard v. McDonalds of Jackson Hole, 746 P.2d 1261, 1263 (Wyo.1987)). "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 v. State ex rel. Wyoming Workers' Compensation Division, 873 P.2d 1219, 1221 (Wyo.1994).
The hearing examiner found in pertinent part as follows:
FINDINGS OF FACT
1. That the testimony of [Hepp's] witnesses Prado, Winterholler, Shaffer, Kuzara and Kawulok was not credible and [was] unsubstantial and, in any event, did not offer much, if anything, to the substance of the issues in the case,....
....
11. Most significantly, in April of 1993, she first saw Dr. Carson on April 13, 1993. His notes from that visit indicate that on March 26, 1993 [Hepp]
12. On her next visit to Dr. Carson on April 16, 1993, he notes "3:00 A.M. this morning left arm started hurting again."
13. Although Dr. Carson made no diagnostic observations when [Hepp] next visited him on April 19, 1993, her visit on April 23 prompted the following note from Dr. Carson:
"Still numb in left hand--arm feels better."
14. Most significantly, on April 29, 1993, the Claimant visited Dr. Carson's office at 8:45 A.M. His notes for that date indicate:
15. On direct examination, Dr. Carson testified that her condition had worsened between April 23, 1993 and when he saw her at 8:45 A.M. on April 29, 1993.
16. [Hepp] testified that the alleged injury at her work occurred at approximately 4:30 P.M. on April 29, 1993.
....
CONCLUSIONS OF LAW
Based upon the above findings, this Hearing Officer concludes:
....
3. From all of the evidence, this Hearing Officer concludes that at 8:45 A.M. on April 29, 1993, [Hepp] had a preexisting injury, which had been treated by Dr. Carson on five separate occasions beginning on April 13, 1993.
....
6. ....
In the case currently before this Hearing Officer, virtually all of the evidence (rather than a mere "scintilla") compels the conclusion that on the very day in question, and before even going to work, [Hepp] was suffering to such a degree that her health care provider noted "neck and shoulders hurt, arms go to sleep and can't lift them without pain." ...
7. Based upon the above, this Hearing Officer concludes:
a. That [Hepp's] activities at work on April 29, 1993 did not constitute a material aggravation [of a preexisting condition];
b. That the only medical testimony proffered by [Hepp], from Dr. Nickerson, was a...
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