In re Armijo, 03-170.

• Decision Date: 20 October 2004
• Docket Number: No. 03-170.,03-170.
• Parties: In the Matter of the Worker's Compensation Claim of Jerry ARMIJO, an Employee of TP Enterprises, Inc. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellant (Petitioner), v. Jerry Armijo, Appellee (Respondent).
• Court: Wyoming Supreme Court

99 P.3d 445

2004 WY 116

In the Matter of the Worker's Compensation Claim of Jerry ARMIJO, an Employee of TP Enterprises, Inc.

State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellant (Petitioner), v. Jerry Armijo, Appellee (Respondent).

No. 03-170.

Supreme Court of Wyoming.

October 20, 2004.

Representing Appellant: J.C. DeMers, Special Assistant Attorney General.

Representing Appellee: Michael K. Kelly, Laramie, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

HILL, Chief Justice.

[¶ 1] The Wyoming Workers' Safety and Compensation Division (Division), challenges an order of the district court that affirmed a decision of the Office of Administrative Hearings (OAH) awarding benefits to an injured worker, Jerry Armijo (Armijo). The Division contends Armijo did not meet his burden of showing that he was injured in the course and scope of his employment, and/or that his injury was a preexisting condition. We will affirm.

ISSUES

[¶ 2] The Division provides this statement of the issues:

Did the hearing examiner commit an error of law by failing to require [Armijo] to meet his clearly established burden of proof that the alleged work injury was a result of a work incident on April 11, 2002, and not the result of a pre-existing condition?

Is the decision of the hearing examiner arbitrary, capricious or an abuse of discretion?

Did the hearing examiner commit an error of law by failing to apply the proper burden of proof by not requiring [Armijo] to prove the cause of his herniated discs within a reasonable degree of medical probability?

Is the decision of the hearing examiner supported by substantial evidence?

Armijo summarizes the issue thus:

Whether the hearing examiner's determination that [Armijo] met his burden of proof regarding the cause and compensability of his injury was supported by substantial evidence and was not otherwise arbitrary, capricious or not in accordance with Wyoming law.

FACTS

[¶ 3] Armijo reported to his foreman at work that he injured his neck while on the job on April 11, 2002. TP Enterprises in Laramie employed Armijo. Tony Peters owned TP Enterprises, and his wife Alicia Peters also worked in that business. Armijo's foreman informed Tony Peters of that injury, and his response was "so what?" Armijo filed an employee's report of injury on April 15, 2002, indicating that he was injured while on the job on April 11, 2002.¹ Alicia Peters signed the report for the employer and indicated that the injury occurred on the job. Armijo sought worker's compensation benefits for what he claimed was an on-the-job injury to his neck.

[¶ 4] By letter dated May 2, 2002, the Division informed Armijo of the status of his claim for benefits:

The Workers' Compensation Division has reviewed your case file and has determined that we cannot approve payment of benefits.

The preponderance of evidence supports that the symptoms occurred at home while raking leaves, and not at work. Wyoming Statute XX-XX-XXX(a)(xi).²

[¶ 5] Armijo asked for a hearing on his claim for benefits and one was scheduled for August 27, 2002. In its pre-hearing disclosure statement, the Division alleged both that the injury did not occur at work and that Armijo had a preexisting condition (injury to his neck of long-standing).

[¶ 6] Wendy Romero testified that she was Armijo's girlfriend, that they had three children together, and they shared a common household. They had been together for 14 years. She further related that Armijo came home from work on April 11, 2002, complaining about neck pain. Armijo did not go to work the following day and spent that day resting on the couch. On April 13, 2002, Armijo was using a hose with a nozzle attached to clean off his driveway when he got a spasm in his neck that was so intense that he dropped the hose. He drove himself to the emergency room at Ivinson Hospital for treatment. Armijo also testified that although he had problems with his lower back, he had never before had problems with his neck. Exactly how Armijo injured his neck and the nature of that injury were contested at the hearing. Much of the relevant evidence was submitted to the hearing officer in the form of exhibits. Both parties submitted exhibits and both parties stipulated that all exhibits could be admitted. There was no medical testimony offered at the hearing, though many of the exhibits were from medical personnel.

STANDARD OF REVIEW

[¶ 7] Our standard of review when reviewing administrative agency action was clarified and refined in the case of Newman v. State ex rel. Workers' Safety and Compensation Division, 2002 WY 91, ¶¶ 7-26, 49 P.3d 163, ¶¶ 7-26 (Wyo.2002). That case held that "the substantial evidence test is the appropriate standard of review ... when factual findings are involved and both parties submit evidence." Id., ¶ 22. In appeals where both parties submitted evidence at the hearing below and the dispute is over the soundness of the factual findings of the agency, Newman mandates the appellate review be limited to application of the substantial evidence test. This is true regardless of which party appeals from the agency decision. The substantial evidence test provides: "In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a scintilla of evidence." Id., ¶ 12 (citing State ex rel. Wyoming Workers' Safety and Compensation Division v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, ¶ 10 (Wyo. 2001)).

When factual findings are challenged, we will affirm those findings if they are supported by substantial evidence.

In contested cases conducted before administrative agencies, the deference that normally is accorded the findings of fact by a trial court is extended to the administrative agency, and we do not adjust the decision of the agency unless it is clearly contrary to the overwhelming weight of the evidence on record. Mekss [v. Wyoming Girls' School, State of Wyoming, 813 P.2d 185 (Wyo.1991)]; State ex rel. Wyoming Workers' Compensation Div. v. Brown, 805 P.2d 830 (Wyo.1991). This is so because, in such an instance, the administrative body is the trier of fact and has the duty to weigh the evidence and determine the credibility of witnesses. Gilmore v. Oil and Gas Conservation Comm'n, 642 P.2d 773 (Wyo.1982).

Wyoming Steel & Fab, Inc., 882 P.2d at 875.

Newman, ¶ 26, also see Ludwig v. Wyoming Workers' Safety and Compensation Division, 2004 WY 34, ¶¶ 5-7, 86 P.3d 875, ¶¶ 5-7 (Wyo.2004); and Loomer v. Wyoming Workers' Safety and Compensation Division, 2004 WY 47, ¶ 15, 88 P.3d 1036, ¶ 15 (Wyo.2004).

[¶ 8] This additional refinement of our standard of review is pertinent in this matter:

We also need to premise our discussion with an acknowledgment that all of the witnesses who testified, and all other evidence introduced at the hearing, clearly established that there were no "eye-witnesses" to Ikenberry's accident. At no time in his reports of the accident, in his narration of the accident to his treating physician, nor in his own live testimony at the hearing, did he make a claim that anyone saw the accident occur. The testimony of an injured worker alone is sufficient to prove an accident if there is nothing to impeach or discredit the worker's testimony and the worker's statements are corroborated by surrounding circumstances. Duncan v. Hardware Mutual Casualty Company, 275 So.2d 462, 463 (La.App.1973). Moreover, the occurrence of injuries resulting from accidents to which there are no eye-witnesses does not prevent fair inferences from being drawn and findings of facts from being made. Bohan v. Lord & Keenan, Inc., 98 N.H. 144, 95 A.2d 786, 788 (1953).

Ikenberry v. State ex rel. Wyoming Workers' Compensation Division, 5 P.3d 799, 803 (Wyo.2000). Moreover, demonstrating evidentiary contradictions in the record does not establish the irrationality of the ruling, but we do examine conflicting evidence to determine if the agency reasonably could have made its finding and order based upon all of the evidence before it. Lunde v. State ex rel. Wyoming Workers' Compensation Division, 6 P.3d 1256, 1259 (Wyo.2000). Also see Pino v. Wyoming Workers' Safety and Compensation Division, 996 P.2d 679, 685 (Wyo.2000) ("Testimony by the medical expert to the effect that the injury "most likely," "contributed to," or "probably" is the product of the workplace suffices under our established standard."); and Thornberg v. Wyoming Workers' Compensation Division, 913 P.2d 863, 867 (Wyo.1996) ("Generally, when a single incident is alleged to have caused an injury, medical testimony is not required if it is not essential to establish a causal connection between the occurrence and the injury.").

DISCUSSION

[¶ 9] The evidence in this case was, indeed, very much in conflict, if not downright contradictory. The hearing officer was called upon to resolve several very significant contradictions. The Division characterizes many of these contradictions as "fabrications" and "lies," but under the applicable standard of review that is a role played by the hearing officer and not by the district court nor by this Court. We also take note at the outset that the record is fairly short. There were no physician witnesses at the hearing; only Armijo's treating physician provided evidence (in the form of responses to written questions propounded by Armijo) that was directly related to the injury at issue. The only witness who testified on behalf of the Division at the hearing was the bookkeeper for Armijo's employer, Alicia Peters.

[¶ 10] The status of Armijo's medical condition was not disputed....