Kg Const., Inc. v. Sherman

• Decision Date: 15 September 2005
• Docket Number: No. 04-209.,04-209.
• Citation: 120 P.3d 145,2005 WY 116
• Parties: KG CONSTRUCTION, INC., Appellant (Petitioner), v. Dale D. SHERMAN, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 145

120 P.3d 145

2005 WY 116

KG CONSTRUCTION, INC., Appellant (Petitioner), v. Dale D. SHERMAN, Appellee (Respondent).

No. 04-209.

Supreme Court of Wyoming.

September 15, 2005.

Representing Appellant: Jeremy D. Michaels of Michaels & Michaels, P.C., Gillette, Wyoming.

Representing Appellee: C. John Cotton of Cotton Law Offices, Gillette, Wyoming.

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

KITE, Justice.

[¶ 1] Dale Sherman worked as a truck driver for KG Construction, Inc. (KG) for over 20 years. In 2002, he began to suffer cervical problems and ultimately underwent surgery. The Workers' Compensation Division (Division) determined his injury was compensable and awarded him benefits. KG objected and a hearing was held by the Office of Administrative Hearings (OAH) which found Mr. Sherman was entitled to temporary total disability benefits because he had suffered a compensable work-related injury over a substantial period of time. KG appealed that decision and the district court affirmed. Finding OAH's decision was supported by substantial evidence, we affirm.

ISSUES

[¶ 2] KG presents the following two issues:

1. Is there substantial evidence to support the Hearing Examiner's decision that the claimant had met his burden of proof for temporary total disability compensation?

2. Did the [H]earing Examiner abuse his discretion by ruling on an apportionment issue when Wyoming Worker's Compensation Division Rules and Regulations specify that he did not have the authority to do so?

Mr. Sherman states the issues as follows:

1. Does W.S. § 27-14-603 require that employment be the sole cause of the injury?

2. Can appellant expand appeal beyond issues raised in original petition for judicial review, and, in any event, is there any merit to additional issues raised?

3. Was there substantial evidence to support the decision of the Office of Administrative Hearings?

FACTS

[¶ 3] Mr. Sherman began working for KG in 1979. During his employment with KG he worked as a truck driver hauling heavy equipment, hay and oilfield tanks. His job also included loading baled hay onto semi trailers, off loading oilfield casing by hand, pulling rear ends out of trucks, pulling transmissions out of trucks, taking tires and wheels off, and working with tire chains weighing 50-60 pounds, that, if muddied, could weigh up to 150 pounds. Heavy lifting and heavy manual work were "part and parcel" of Mr. Sherman's job at KG. In addition to the regular work demands, Mr. Sherman testified he had sustained various traumatic injuries while employed by KG which could have contributed to his back problems.

[¶ 4] Prior to working for KG, Mr. Sherman's jobs included ranch hand, general road construction, military service, and truck driver. Mr. Sherman estimated that he spent about ten years working as a truck driver before he went to work for KG. In the mid-'80s, Mr. Sherman began having pain in the base of his neck while loading hay bales and driving his truck. He described the pain as a burning sensation which would last all day. After a hot shower and a night's sleep, the pain would be gone. However, as the day went on, the pain, which felt like a "hot knife," would return and become more severe.

[¶ 5] In February of 2002, as Mr. Sherman was driving his truck to Newcastle, Wyoming, to pick up a load of rock, he felt a pain in the back of his neck that spread into his left shoulder and down his arm. In addition to the pain, Mr. Sherman's fingers felt "numb and tingly." He stopped at a rest stop and the pain went away after he walked around. He continued driving toward Newcastle and the pain returned. It was so severe that Mr. Sherman became ill and thought he was having a heart attack. He was taken by ambulance to the hospital in Newcastle, but, after a series of tests, doctors told Mr. Sherman his heart was fine.

[¶ 6] The following week, as Mr. Sherman was driving his truck as usual, the pain returned. He immediately sought medical attention. An MRI of Mr. Sherman's back demonstrated "C5/6 central degenerative stenosis with fairly severe right sided foraminal stenosis" as well as "a left paracentral disc herniation and mild foraminal stenosis at C6/7." Mr. Sherman received a cervical epidural steroid injection to relieve the pain on March 29, 2002. Following an evaluation by Dr. Edward Seljeskog in Rapid City, South Dakota, on April 30, 2002, Mr. Sherman underwent surgery described as an anterior cervical discectomy and partial vertebrectomy at C5-6 and C6-7 with interbody bone fusion. Mr. Sherman returned to work for KG on July 1, 2002.

[¶ 7] Mr. Sherman sought and was granted temporary total disability benefits for the time he was off work. Contending the injury was not compensable, KG objected to the Division's determination. Following a hearing, the hearing examiner ruled the injury was a compensable injury occurring over a substantial period of time under Wyo. Stat. Ann. § 27-14-603(a) (LexisNexis 2003). The hearing examiner found "the repeated traumas, stresses, and strains of work over a 22 year period with KG Construction materially contributed to the degeneration of the cervical spine and to the fact that the degeneration became symptomatic."

[¶ 8] KG sought review in the district court, which affirmed the order rendered by OAH. This appeal followed.

STANDARD OF REVIEW

[¶ 9] The substantial evidence test is the appropriate standard of review in appeals from contested case proceedings when factual findings are involved and both parties submit evidence. Robbins v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2003 WY 29, ¶ 18, 64 P.3d 729, 732 (Wyo.2003). 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. Even if the factual findings are found to be supported by substantial evidence, the ultimate agency decision may still be found to be arbitrary or capricious for other reasons. An appellate court does not examine the record only to determine if there is substantial evidence to support the agency's decision, but it also must examine the conflicting evidence to determine if the hearing examiner could have reasonably made its finding and order upon all of the evidence before it. Newman v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2002 WY 91, ¶ 24, 49 P.3d 163, 172 (Wyo.2002). In the instant case, the hearing examiner made factual findings and both parties submitted evidence; thus, we will apply the substantial evidence test.

DISCUSSION

[¶ 10] KG argues that Mr. Sherman failed to meet the burden of proof applicable to claims for injuries which have occurred over a substantial period of time. Although KG does not contest that Mr. Sherman suffered major back trauma, it asserts his back condition was due to wear and tear from 40 years of employment, rather than directly attributable to the time Mr. Sherman worked for KG. In response, Mr. Sherman contends substantial evidence existed to support the hearing examiner's determination that his employment was a proximate cause of his injury, and that the statutes did not require the work must be the sole cause of the injury.

[¶ 11] An employee seeking compensation for an injury that occurs over a substantial period of time is statutorily required to prove several elements by a preponderance of the evidence. Baxter v. Sinclair Oil Corp., 2004 WY 138, ¶ 11, 100 P.3d 427, 431 (Wyo.2004). Wyo. Stat. Ann. § 27-14-603(a) (LexisNexis 2003) provides:

(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.

"[Section] 27-14-603 was intended to require a higher burden of proof for workers claiming benefits for illnesses or injuries developing over time without a definite triggering accident or event. Such situations might include repetitive motion injuries or repeated exposure to caustic or carcinogenic substances." Yenne-Tully v. State ex rel. Wyo. Workers' Safety and Comp. Div., 12 P.3d 170, 172 (Wyo.2000). We have held this statutory burden of proof requires a claimant/employee to prove the claim arose out of and in the course of his or her employment through competent medical evidence, and to prove each of the five specified criteria which show a causal connection between the injury and employment by a preponderance of the evidence. Id.

[¶ 12] Thus, our threshold inquiry is whether substantial evidence exists to support the finding that Mr. Sherman, using competent medical evidence, demonstrated that his claim arose out of and in the course of his employment with KG. We have stated:

"To show that the injury arises out of or in the course of employment, the claimant must show a causal connection between the injury and the employment. This causal connection exists when there is a nexus between the injury and some condition, activity, environment or requirement of the employment."

Baxter, ¶ 12 (citations omitted). We have held that

the causal connection between an accident or condition at the workplace is satisfied if the medical expert testifies that it is more probable than not that the work contributed in a material fashion to the precipitation, aggravation or...