Little America Refining Co. v. Witt

• Decision Date: 04 June 1993
• Docket Number: No. 92-245,92-245
• Citation: 854 P.2d 51
• Parties: In the Matter of the Workers' Compensation Claim of LITTLE AMERICA REFINING CO., Appellant (Petitioner/Employer), v. David WITT, Appellee (Respondent/Claimant).
• Court: Wyoming Supreme Court

Page 51

854 P.2d 51

In the Matter of the Workers' Compensation Claim of LITTLE AMERICA REFINING CO., Appellant (Petitioner/Employer), v. David WITT, Appellee (Respondent/Claimant).

No. 92-245.

Supreme Court of Wyoming.

June 4, 1993.

Stephenson D. Emery of Williams, Porter, Day & Neville, Casper, for appellant.

Eric A. Easton, Casper, for appellee.

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

GOLDEN, Justice.

An employer challenges a worker's compensation award to its employee on three grounds:

First, the employer questions whether the independent hearing examiner had jurisdiction to issue an order scheduling a contested case hearing before the worker's compensation division had taken its final action on the worker's claim. We hold that the hearing examiner had jurisdiction to issue the scheduling order.

Second, the employer asserts that the award decision must be reversed because the employee failed timely to report the occurrence and general nature of the accident to the employer within seventy-two hours "after the general nature of the injury became apparent" to the worker, as required by WYO.STAT. § 27-14-502(a) (1991). We hold that the employee timely reported the occurrence and general nature of the accident within the requisite time period "after the general nature of the injury became apparent" to him.

Finally, the employer contends the hearing examiner's decision that the employee's injury arose out of his employment is not supported by substantial evidence, is arbitrary and capricious, and is characterized by an abuse of discretion. We hold that the hearing examiner's decision is supported by substantial evidence We affirm the hearing examiner's decision.

is neither arbitrary nor capricious, and is not the product of an abuse of discretion.

ISSUES

Appellant Little America Refining Company presents its three principal contentions through these issues:

1. Did the Office of Administrative Hearings (hereinafter referred to as "Office") issue its "Order Setting Hearing," dated December 31, 1991, in excess of its statutory jurisdiction, authority or limitations?

2. Was the Office's finding that "[i]t therefore seems most likely that the injury occured [sic] on October 7 or 9, and not over a substantial period of time," supported by substantial evidence?

3. Was the Office's conclusion that "[o]n or about October 7 or 8, 1991, Claimant sustained a work-related injury ...," arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law?

4. Was the Office's finding and conclusion that "[c]laimant timely notified his employer and timely filed a Report of Injury," supported by substantial evidence or arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law?

5. Was the Office's finding that claimant rebutted, by clear and convincing evidence, the presumptive denial of benefits pursuant to W.S. 27-14-502(c), supported by substantial evidence?

6. Was the Office's finding and conclusion that "[t]he injury does not come from a hazard to which Claimant would have been equally exposed outside of his employment," supported by substantial evidence or arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law?

Appellee David Witt counters with this statement of the issues:

1. Was the decision of the Administrative Hearing Officer dated April 20, 1992 awarding benefits to Petitioner supported by substantial evidence?

2. Was the finding of the Administrative Hearing Officer that the Employee-Claimant timely notified his employer and timely filed a report of injury, supported by substantial evidence?

3. Did the Administrative Hearing Officer have authority to hear this matter?

FACTS

David Witt (employee) was employed as a maintenance mechanic and heavy equipment operator by Little America Refining Co. (employer) for seventeen years. Following a nine-day elk hunting vacation during which he walked more than eight miles a day in mountainous terrain, the employee returned to work on October 7, 1991. During his hunting vacation he had no accidents, received no injuries, was pain free, and he remained so upon his return to work. On October 7, the employee put a seal and a power steering pump on a backhoe. Between October 8 and October 21, he worked on a pipe cutting and moving job. The pipe on which he worked was in random lengths, one being seventy-two feet long. The size of the pipe ranged from two-inch to six-inch; the weight was about three pounds per foot. On occasion, the employee, along with a co-worker, had to lift the pipe and move it a distance of about ten feet.

On October 17, 1991, the employee told his supervisor, Joe Koenig, that he had been feeling some pain in his back for some time, it was affecting his leg, it was not getting better, and he needed a doctor to look at it. He told Koenig that he was not sure what had caused the pain, that it could be from a 1986 work-related back injury. According to Koenig, the employee told him he was feeling "kind of a tingling sense * * * going down his arm and leg * * * and he thought that he might have reinjured his back * * *." Under cross-examination at the hearing, the employee did not identify any particular incident during the period of October 8 to 17 when he was working with the pipe in which he felt a pop and then immediate pain; rather Although the employee informed his supervisor of his sore back and tingling leg and the need to see a doctor, he did not receive permission from his supervisor to see the doctor until October 22. On that day, the employee called to arrange a doctor's appointment. The doctor, a neurosurgeon who had attended and operated on the employee for the previous back injury, could not see the employee until November 6. From October 22 to November 6, the employee remained at work performing routine maintenance tasks.

                during that time period his back became progressively worse.  The employee's co-worker on October 8, was Larry Smith, an employee of Halston Services and on temporary assignment to the employer.  Smith testified that on October 8, when he and the employee were picking up a heavy strand of pipe, the employee "started talking about his back was stinging."   He further testified that the employee "really didn't complain about saying he just hurt his back.  He said his back was hurting."   Smith told him to sit down for awhile, which he did
                

Following his doctor's appointment on November 6, the employee had a magnetic resonance imaging test (MRI). On November 11, his doctor told him he had a herniated disk at the L4-5 level in his lower back and that this injury was new and unrelated to the previous one. After receiving his doctor's diagnosis and suggested course of treatment which was surgery, the employee returned to work that day and told his supervisor of the diagnosis and surgery. On November 13, pursuant to Koenig's instruction, the employee told Bob MacNamara, the employer's accounting and office manager, of the diagnosis and need for surgery. The employee filed a written report of injury and a claim that same day. The worker's compensation division, the clerk of the district court, and the employer all received copies of that filing.

On November 15, 1991, the employer filed its report of injury disputing the validity of the claimed injury:

At issue is whether the back problem is a result of workplace or off duty injury. [The employee] stated that he had told his supervisor that he had a sore back in mid-October, but that he could not remember when he hurt it. Joe Koenig, his supervisor, remembered [the employee] mentioning a sore back, but since [he] was not able to explain a specific incident, Joe did not feel that the complaint warranted an injury report.

On November 18, 1991, the clerk of court informed the employee of the employer's objection to his claim and advised him to contact the clerk's office for an explanation of the procedure for protesting the employer's denial of the claim.

On December 2, 1991, the employee filed an amended report of injury. On December 6, 1991, the clerk of court received and filed the division's "Initial Review-Employer Dispute" document dated December 4. The document requested that the employee provide a written response to the employer's objection and informed the parties that unless the division received an objection to the division's conclusion by December 23, 1991, the division's conclusion would become the final determination. By letter dated December 10, the employee responded to the division's request. He noted his objection to the employer's objection, asserted the injury occurred at work, and stated he had informed his supervisor on October 17. On December 16, 1991, the clerk of court filed the employee's written explanation for claiming benefits. In this narrative, the employee explained in pertinent part:

I feel this was a work related injury because of the job I was assigned prior to the time I began to feel the pain. Approximately seven to ten days prior to the pain, I was lifting 1"' to 3"' pipe from a pipe rack on the ground and moving it by hand in order to pick [it] up with the winch truck. I have done nothing outside of work that could cause this type of injury.

On December 26, 1991, the clerk of court transmitted the claim file to the Office of Administrative Hearings. The hearing examiner issued an order on January 2, 1992, setting the contested case hearing for January The contested case hearing was held on January 28, 1992, before the independent hearing examiner. Neither the employer nor the division questioned the hearing examiner's jurisdiction to conduct the hearing. Witnesses testifying at the hearing included the employee, his supervisor, the office manager and a co-worker. The hearing officer recessed the hearing to permit taking the deposition of the employee's neurosurgeon. The deposition was taken February 24, 1992, and incorporated...