Latimer v. Rissler & McMurry Co.

• Decision Date: 12 September 1995
• Docket Number: No. 95-14,95-14
• Citation: 902 P.2d 706
• Parties: Frank E. LATIMER, Appellant (Employee-Claimant), v. RISSLER & MCMURRY CO., Appellee (Employer-Objector).
• Court: Wyoming Supreme Court

Page 706

902 P.2d 706

Frank E. LATIMER, Appellant (Employee-Claimant), v. RISSLER & MCMURRY CO., Appellee (Employer-Objector).

No. 95-14.

Supreme Court of Wyoming.

Sept. 12, 1995.

Harry G. Bondi of Harry G. Bondi, P.C., Casper, for appellant.

James A. Raymond of Brown & Raymond, P.C., Casper, for appellee.

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

MACY, Justice.

Appellant Frank Latimer appeals from the district court's order which affirmed the hearing examiner's decision to deny Latimer's request for worker's compensation benefits.

We affirm.

ISSUES

Latimer presents the following issues for our review:

1. Whether the finding of the hearing examiner, Office of Administrative Hearings, that the Appellant did not sustain an injury arising out of and in the course of his employment is supported by substantial evidence, and whether the decision was arbitrary and capricious.

2. Whether the finding of [the] hearing examiner, Office of Administrative Hearings, that the Employee-Appellant did not disclose to Drs. Philip D. Gordy and Kathy Gardner that he had a minor shin contusion and ankle fracture (a non-displaced distal fibular fracture) is supported by substantial evidence.

3. Whether the finding of the hearing examiner, Office of Administrative Hearings, that the Employee-Appellant's August 2, 1991 shin contusion and non-displaced distal fibular fracture could have been the cause of Appellant's low back pain is supported by substantial evidence.

FACTS

Latimer was employed by Appellee Rissler & McMurry Co., driving a belly dump truck. The drivers' seats on these types of trucks were equipped with hydraulic shock absorbers Latimer testified that on June 23, 1993, he felt a sharp pain in his back when he was getting out of the pickup in which he and some co-workers had been riding in order to get to the work site. One of these co-workers testified that he had heard Latimer make a noise as he was getting out of the pickup on that date and that he could tell Latimer was in some sort of pain.

so that the jarring from the bumps which they encountered would be softened. Latimer claimed that the hydraulic shock absorber was worn out in the truck which he drove and that, as a result, his back sustained excess jarring. Latimer's brother, who was a master mechanic with Rissler, testified that in the middle of June 1993 his department received a request to change the shock absorber in Latimer's truck.

A contested case hearing was held before the Office of Administrative Hearings. The hearing examiner found that Latimer had failed to prove that his claim arose out of and in the course of his employment under WYO.STAT. §§ 27-14-102(a)(xi) and -603(a) (Supp.1995) and that Latimer had failed to prove the elements which were listed under § 27-14-603(a). The hearing examiner, therefore, denied Latimer's request for worker's compensation benefits.

Latimer filed a motion for reconsideration in which he attempted to refute some of the hearing examiner's specific findings; i.e., that the medical experts had not been given a full history of prior conditions which could have contributed to Latimer's pain. Latimer claimed in his motion that the medical experts had been provided with correct medical histories, and he included an affidavit from one medical expert in which the expert claimed that he had been provided with a copy of all Latimer's medical records and that he had known about Latimer's ankle injury and possible "short leg."

After holding a hearing on the matter, the hearing examiner denied Latimer's motion. Latimer appealed to the district court, and the district court affirmed the hearing examiner's decision. This appeal followed.

STANDARD OF REVIEW

W.R.A.P. 12.09 provides that a judicial review of administrative decisions is limited to a determination of the matters which are specified in WYO.STAT. § 16-3-114(c) (1990). Section 16-3-114(c) provides in pertinent part:

(c) ... [T]he reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

. . . . .

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

. . . . .

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

See Worker's Compensation Claim of Taylor v. State ex rel. Wyoming Worker's Compensation Division, 890 P.2d 559, 560-61 (Wyo.1995). "[A]n agency's action is arbitrary and capricious and must be reversed if any essential finding is not supported by substantial evidence." Majority of Working Interest Owners in Buck Draw Field Area v. Wyoming Oil and Gas Conservation Commission, 721 P.2d 1070, 1079 (Wyo.1986) (emphasis added).

Whether an employee's injury occurred in the course of his employment is a question of fact. Hepp v. State ex rel. Wyoming Workers' Compensation Division, 881 P.2d 1076, 1077 (Wyo.1994). We review an administrative agency's findings of fact by applying the substantial evidence standard. Section 16-3-114(c)(ii)(E). Our task is to examine the entire record to determine whether substantial evidence supported the

hearing examiner's findings. Romero v. Davy McKee Corporation, 854 P.2d 59, 61 (Wyo.1993). We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Bearden v. State ex rel. Wyoming Workers' Compensation Division, 868 P.2d 268, 269 (Wyo.1994). Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Jackson v. J.W. Williams, Inc., 886 P.2d 601, 603 (Wyo.1994).

DISCUSSION

Latimer essentially bases his appeal on his claim that the hearing examiner's conclusion that Latimer did not sustain an injury which arose out of and in the course of his employment was arbitrary, capricious, and an abuse of discretion because substantial evidence did not support some of the findings of fact.

Section 27-14-603(a) 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.

"Injury" is defined as being

any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and 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.

Section 27-14-102(a)(xi).

In the order in which he denied Latimer's claim for worker's compensation benefits, the hearing examiner found the following:

14. In this case, the Claimant has failed to prove, by competent medical authority, that his claim arose out of and in the course of his employment. While Dr. Gordy characterized the employment as a major contributing factor, this was based upon a faulty history given by the Claimant, and was not supported by the other medical authority in this case. The medical evidence received from Dr. Hollifield and Dr. Delgadillo made no reference to any jarring of a seat, as having anything to do with the Claimant's condition.

15. In addition, the Claimant did not show a direct causal connection between the condition or circumstance under which the work was performed and the injury. Regardless of which version is accepted as true, it is clear the Claimant did nothing unusual in either getting into the truck or out of the truck which resulted in his complaints of pain.

16. The Claimant also failed to show that the alleged injury could be seen to have followed as a natural incident of the work as a result of his employment. Once again, the pain which the Claimant said he experienced could just as easily have occurred as a result of getting into or out of a personal vehicle.

17. The alleged injury cannot be fairly traced to the employment as a proximate cause for the reasons set forth above. In addition, the Claimant failed to show that the injury did not come from a hazard to which he would have been equally exposed outside of the employment. The degenerative disc disease which the Claimant was diagnosed as having is commonly a result We are aided in this case by the existence of a second order, the order which denied Latimer's motion for reconsideration. This second order is beneficial because it gives us considerable insight into the hearing examiner's rationale as to the issues which Latimer has presented in this appeal. The relevant portions of the order which denied Latimer's motion for reconsideration are as follows:

of the...