Ikenberry v. State ex rel. Wyoming Workers' Compensation Division

• Decision Date: 03 May 2000
• Docket Number: No. 99-250.,99-250.
• Citation: 5 P.3d 799
• Parties: In the Matter of the Worker's Compensation Claim of: Tim IKENBERRY, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Defendant).
• Court: Wyoming Supreme Court

5 P.3d 799

In the Matter of the Worker's Compensation Claim of: Tim IKENBERRY, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Defendant).

No. 99-250.

Supreme Court of Wyoming.

May 3, 2000.

Representing Appellant: William M. Mac-Pherson, MacPherson Law Offices, LLC, Rawlins, WY. Argument presented by Mr. MacPherson.

Representing Appellee: Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General; and Elizabeth C. Teigen, Assistant Attorney General. Argument presented by Ms. Teigen.

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

HILL, Justice.

Appellant, Tim Ikenberry, seeks review of an order of the Office of Administrative Hearings denying his claim for worker's compensation benefits. We determine that the order denying evidence is contrary to the great weight of the evidence and, hence, is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. We reverse with directions that Ikenberry's claim for benefits be granted.

ISSUES

Ikenberry advances these issues:

1. Was the Hearing Examiner's decision to deny benefits supported by substantial evidence?

A. Was the Hearing Examiner's finding that there were numerous inconsistencies in the evidence presented by the Employee supported by substantial evidence?

B. Did the Hearing Examiner improperly consider evidence unrelated to the Employee's injury?

2. If the Employee's injury arose out of and in the course of his employment, should benefits be denied because the Employee suffered from a preexisting condition?

The Appellee, Wyoming Workers' Safety and Compensation Division (Division), rephrases the issues thus:

The Hearing Examiner denied benefits as he found that Employee did not prove the causation element of his case. The Hearing Examiner found that Employee presented numerous inconsistencies. These inconsistencies caused the Hearing Examiner to find Employee's testimony `questionable at best.'

A. Does substantial evidence support the Hearing Examiner's findings?

B. Does substantial evidence support a denial of benefits because of the Employee's pre-existing condition or should the Court remand the case to the Hearing Examiner for findings on the issue?

FACTS

Ikenberry, who was thirty-eight years of age at the time of the injury in controversy, was living in Casper when this matter arose. Preliminary to qualifying for parole, he was residing at the Community Alternatives Center (CAC) in a work release program. Ikenberry claimed to have been injured on March 15, 1998, while working at the Flying J Restaurant in Casper, when he slipped and twisted his back while lifting heavy mats out of a dishwasher. He first submitted a "Wyoming Report of Occupational Injury or Disease" on March 16, 1998. Ikenberry testified that he related the result of his accident (that his back ached) to Flossie Reeb (Reeb), his supervisor, shortly after the accident occurred. The day following the injury, Ikenberry formally reported the accident to Reeb, and she transcribed his oral description of the accident thus: "Was doing dish[es] that night said he had a back ache at end of night—had also complained of back ache the night before." The report indicated that Ikenberry's normal work hours were from 2:00 p.m. to 10:30 p.m. That report also answered the question, "Has employee been treated for this injury and/or condition before?" with a question mark (?) and noted, "When he went for drug test he was on Darvocet and muscle relaxers Norflex." In addition, there were no witnesses listed in the report. Ikenberry filed a second report on March 17, 1998, and he himself wrote the information on that report. That report indicated that his normal work hours were from 6:00 a.m. to 2:00 p.m.; made no mention of previous treatment for "this injury;" listed two witnesses to the accident, "Flossy" and "Kate," and described the accident thus: "Working in dish tank lifting heavy mats and lifting heavy tubs of dishes on slippery floor." In all other pertinent respects, the reports were about the same.

The day following the "accident," March 16, 1998, Ikenberry was in considerable pain and sought medical care. First, he went to a hospital emergency room, then to a chiropractor, and finally to Albert V. Metz, M.D. (Metz), a physician whose practice is limited to neurological surgery. On March 25, 1998, Metz performed surgery on Ikenberry to repair a large disc herniation which was of recent origin and which was the result of a material aggravation or an acute precipitation of the disc herniation at the time he lifted and twisted with the heavy mats. Ikenberry's complaints and his medical condition which required surgery were consistent with Dr. Metz's examination, the tests performed (MRI, etc.), the report made by Ikenberry, and Ikenberry's posture (bent over and in pain). Dr. Metz did note some degenerative changes at other disc levels in Ikenberry's back, but these were not unusual for a person who has done fairly active work. Dr. Metz also stated that he believed Ikenberry's complaints because his complaints and reports were sensible and consistent with the information he provided to Dr. Metz.

Ikenberry's claim for worker's compensation benefits was investigated, and ultimately the claim was denied on April 21, 1998, for the following reasons:

Final Determination

The Workers' Compensation Division has reviewed your accident report and medical records on 4/21/98, and has determined that we cannot approve payment of benefits for the following reason(s):

1) Definition of injury does not include: Any injury or condition preexisting at the time of employment with the employer against whom a claim is made. (Wyoming Statute XX-XX-XXX(a)(xi)(f));

2) The burden is on the claimant to prove each essential element of his or her claim by a preponderance of the evidence;

3) The incident, as reported to the Division, does not meet the following definition: "Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement or 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. (Wyoming Statute XX-XX-XXX(a)(xi));

4) Definition of injury does not include: Any injury resulting primarily from the natural aging process or from the normal activities of day-to-day living, as established by medical evidence supported by objective findings. (Wyoming Statute XX-XX-XXX(a)(xi)(G)). [Emphasis in original.]

The only conclusion that we can make from a reading of the letter denying benefits is that it was premised on a preexisting condition, the natural aging process, and normal activities of day-to-day living. The problem with those conclusions is that there was no evidence of record developed in the Division's investigation of Ikenberry's injury to support those conclusions. It is correct that Ikenberry had a preexisting condition, but that condition was in his neck, and Dr. Metz positively eliminated that as being related to the injury he corrected with the surgery ("... obvious that these are totally unrelated things."). Dr. Metz characterized Ikenberry's back as showing only normal degeneration based on his work history (no mention is made of "the natural aging process"), and there is no evidence that the injury resulted from the normal activities of day-to-day living. No mention is made in the above-quoted letter of the issues that were advanced at the hearing held on this matter (lying, deceit, artifice, etc.). Indeed, we feel compelled to note that the above-quoted letter appeared to have been composed based on speculation that was unsupported by the only medical evidence available to the Division.

On May 14, 1998, Ikenberry filed a request for a hearing on the denial of his claim stating: "We are objecting on the grounds that we are denying that this is a preexisting injury." Thereafter, the wheels of justice turned somewhat slowly because Ikenberry was returned to the Wyoming State Penitentiary from CAC, and assigning the case from Natrona County to Carbon County took some time. Suffice it to say for purposes of this appeal, his hearing before the Office of Administrative Hearings did not take place until March 30, 1999, and the Hearing Examiner's order is dated April 29, 1999. On May 18, 1999, Ikenberry filed his petition for review in the district court, and the district court certified the matter to this Court pursuant to W.R.A.P 12 on August 23, 1999.

STANDARD OF REVIEW

Our standard of review in a case such as this is well-established:

A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. Martinez v. State ex rel. Wyoming Workers' Compensation Div., 917 P.2d 619, 621 (Wyo.1996). When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the "[a]rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" language of Wyo. Stat. § 16-3-114(c)(ii) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant, Pederson in this instance, has the burden of proving arbitrary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 432, 439 (Wyo. 1974); Marathon Oil Co. v. Welch, 379 P.2d 832, 836 (Wyo.1963); Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of

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