In re Fisher, No. S-07-0220.

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Hill
• Citation: 189 P.3d 866,2008 WY 89
• Parties: In the Matter of the Worker's Compensation Claim of Wilma FISHER, Surviving Spouse of David E. Fisher, an Employee of the Western Sugar Company: Wilma Fisher, Appellant (Petitioner/Claimant), v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee (Objector/Respondent).
• Docket Number: No. S-07-0220.
• Decision Date: 30 July 2008

189 P.3d 866 2008 WY 89 In the Matter of the Worker's Compensation Claim of Wilma FISHER, Surviving Spouse of David E. Fisher, an Employee of the Western Sugar Company:
Wilma Fisher, Appellant (Petitioner/Claimant),
v.
State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee (Objector/Respondent). No. S-07-0220. Supreme Court of Wyoming. July 30, 2008.

Representing Appellant: Larry B. Jones of Simpson, Kepler & Edwards, LLC, the Cody, Wyoming Division of Burg, Simpson, Eldredge, Hersh & Jardine, PC, Cody, Wyoming.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; and Kristi M. Radosevich, Senior Assistant Attorney General.

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

HILL, Justice.

[¶ 1] Appellant, Wilma Fisher (Mrs. Fisher), sought worker's compensation death benefits as the surviving spouse of her husband, David Fisher. He was seriously injured at work on October 1, 1993. Those injuries left him a paraplegic. On June 22, 2005, a fire occurred in the Fishers' home. Mr. Fisher

189 P.3d 867

was rescued from the house, although he was unconscious from the effects of smoke inhalation. He was hospitalized for 19 days before he expired from pneumonia. His attending physician testified that Fisher died because his paraplegia rendered him unable to cough with sufficient force so as to expel the mucus that developed in his bronchi as a result of the smoke inhalation. Appellee, the Wyoming Workers' Safety and Compensation Division (Division), denied Mrs. Fisher's claim for death benefits on the basis that Mr. Fisher did not die as a result of the work-related injury. Mrs. Fisher requested a hearing, and a hearing examiner agreed with the Division's denial of benefits. Mrs. Fisher also appealed to the district court and it, too, affirmed the Division's denial of benefits. We conclude that there is not substantial evidence to sustain the hearing examiner's findings and, therefore, we will reverse and remand to the district court with directions that it further remand to the hearing examiner with directions that the applicable death benefits be awarded to Mrs. Fisher.

ISSUES

[¶ 2] Mrs. Fisher raises these issues:

1. The decision of the hearing examiner, in denying benefits under W.S. § 27-14-403(e) (LexisNexis 2007), to the surviving widow was arbitrary, capricious, not otherwise in accordance with the law and unsupported by substantial evidence.

2. The work-related injuries of the deceased, David Fisher, were a direct cause of his subsequent death from smoke inhalation and pneumonia, the competent and sufficient evidence presented by [Mrs. Fisher] established such cause, and the conclusion of the hearing examiner, in interpreting and applying W.S. § 27-14-403(e) so as to deny [Mrs. Fisher] the benefits requested was arbitrary, capricious, [and] not otherwise in accordance with the law.

The Division contends that the hearing examiner's decision is in accordance with law.

FACTS AND PROCEEDINGS

[¶ 3] The parties essentially agree that the facts in this case are not in dispute. It is the application of the governing law to those facts that has produced the controversy at hand. David Fisher suffered his debilitating injuries on October 1, 1993. Mrs. Fisher described her husband's injuries in these words, as in turn they had been described to her:

They told me that it was about an 8 inch pipe by 10 or 15 feet long that hit him on the head and knocked him back against an iron railing. It was a big, thick, heavy iron railing and it bent it. It crushed his spinal cord and cut off his fingers and tore his aorta and gave him a very severe head injury.

[¶ 4] After suffering those injuries, Mr. Fisher was confined to a wheelchair during his waking hours, and he and his wife moved to Pocatello, Idaho, to be near family members who could help him and his wife with his care. In the early afternoon of June 22, 2005, Mr. Fisher went into his bedroom where he had a wheelchair-accessible worktable where he built model planes, trains, etc. He was 74 years old at that time. When Mr. Fisher emerged from that room a short time later, Mrs. Fisher noted thick smoke in the room. The exact cause of the fire was not determined, other than that it was accidental. Mrs. Fisher continued her narration of those events like this:

I ran out and got my fire extinguisher, which was just right here close. I grabbed it and went in and couldn't see. I put a towel up to my face. I couldn't work the fire extinguisher with one hand. I could tell that it was getting out of hand.

I said, come on, Dave, I've got to get you out of here. He said, I think I can put it out. Well, you know, his mind was not that clear, and he wouldn't come with me and the chair was too heavy for me to force him to come out. So I just ran out and went to the neighbor's to call the fire department.

....

They came real quickly. They came in and found him and got him out. He was unconscious they said when they brought him out. He was conscious when I saw

189 P.3d 868

him. They gave him oxygen and he kind of came around.

[¶ 5] Cross-examination of Mrs. Fisher revealed that Mr. Fisher had tried to get a glass of water from the bathroom so as to try to extinguish the fire and that his wheelchair was wedged in the hallway of his home when he was found by firefighters.

[¶ 6] As noted above, Mr. Fisher died on July 11, 2005, 19 days after he first suffered the effects of smoke inhalation. On August 23, 2005, the Division denied Mrs. Fisher's death benefits claim for the stated reason that: "The death certificate stated the cause of death to be pneumonia from smoke inhalation which is not related to the original injury to the spine. Wyoming Statute § 27-14-601(a)." That statute provides:

(a) Upon receipt, the division shall review the initial injury reports to determine if the injury or death resulting from injury is compensable and within the jurisdiction of this act. No subsequent claim for compensation under this act shall be approved if the division determines the injury or death is not compensable and under the jurisdiction of this act or if the employer states on his injury report that the injury is not compensable, until a determination is rendered by the division. The division shall provide notice of its determination to the employee, employer and the claimant.

Wyo. Stat. Ann. § 27-14-601(a) (LexisNexis 2007).

[¶ 7] That response to Mrs. Fisher's claim was only partially accurate. A document entitled Certificate of Death, issued by the State of Idaho on August 17, 2005, indicates that Mr. Fisher died of "Pneumonia & Respiratory Failure." There is no indication that this document was received by the Division, although it appears in the record created by the agency. The Division did receive a second death certificate from the State of Idaho. It is date-stamped as received on both July 29, 2005, and August 11, 2005 (it was certified by the State of Idaho on July 19, 2005). That death certificate indicates that Mr. Fisher died from pneumonia of two days duration, secondary to smoke inhalation of two weeks duration, and included a notation to this effect, under "other ... conditions contributing to death:" "Paraplegia & respiratory muscle weakness."

[¶ 8] In a letter dated July 19, 2005, which is found in the record, but which is not date-stamped as to when it was received by the Division, Mr. Fisher's attending physician wrote:

Mr. Fisher recently expired after a long hospital stay related to complications from smoke inhalation. He was in his train room at home when a fire began. When his wife found him, she tried to get him out of the room, but he would not cooperate and he was too heavy in the wheelchair for her to force him out. Family informs me that when the firemen got there they found him unconscious in...