Romero v. Davy McKee Corp.

• Citation: 854 P.2d 59
• Decision Date: 07 June 1993
• Docket Number: No. 92-265,92-265
• Parties: Timothy T. ROMERO, Appellant (Petitioner/Employee-Claimant), v. DAVY MCKEE CORPORATION, Appellee (Respondent-Employer).
• Court: United States State Supreme Court of Wyoming

Page 59

854 P.2d 59

Timothy T. ROMERO, Appellant (Petitioner/Employee-Claimant), v. DAVY MCKEE CORPORATION, Appellee (Respondent-Employer).

No. 92-265.

Supreme Court of Wyoming.

June 7, 1993.

George Santini of Graves, Santini & Villemez, P.C., Cheyenne, for appellant.

Michael Rosenthal and Rebecca L. Hellbaum of Hathaway, Speight, Kunz, Trautwein & Barrett, Cheyenne, for appellee.

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

MACY, Chief Justice.

This is an appeal from the district court's order affirming an independent hearing examiner's decision that Appellant Timothy T. Romero's employment with Appellee Davy McKee Corporation did not materially contribute to, aggravate, or accelerate the continued loosening of Mr. Romero's wrist implant.

We affirm.

Mr. Romero provides this statement of the issues:

1. Did the hearing officer err in ruling that employee-claimant's wrist injury was not compensable where the medical evidence established that the injury arose as a result of his continuing work efforts as a pipefitter including those with Davy McKee Corporation?

2. Did the hearing officer and district court apply the wrong legal standard for the determination of whether an aggravation of a pre-existing injury results in a compensable injury?

3. Did the hearing officer err as a matter of law in failing to apply the provisions of § 27-14-603(e), W.S. 1977 (1991 Repl.) ¹ where the employee-claimant's injury was directly related to his continuing work efforts as a pipefitter?

On August 12, 1991, Mr. Romero filed a worker's compensation report of injury in which he related that he was injured on June 27, 1991, during the course and scope of his employment. He described his injury as follows:

I was pulling two pieces of 8"' pipe together with a wire come-a-long. The bolt holding the gear came out when there was extreme press[ure] as I was pulling[,] releasing all the press[ure] to my hand & wrist.

On the day he was injured, Mr. Romero received treatment for a laceration to his thumb, and he returned to work. He did not complain specifically of an injury to his wrist at that time. Davy McKee Corporation objected to Mr. Romero's claim for worker's compensation benefits. By a letter dated September 13, 1991, the Workers' Compensation Division concluded that Mr. Romero had a preexisting condition and that the injury was an exacerbation of that condition. Mr. Romero requested a hearing.

A hearing was held on May 8, 1992. At the conclusion of the proceedings, the hearing examiner issued these findings:

2. Employee-Claimant Timothy T. Romero, Sr. claimed an injury to his left wrist, stemming from a work-related accident which occurred on June 27, 1991, while at work for Employer Davy McKee Corporation at a construction site located in Laramie County, Wyoming.

3. Employee-Claimant Timothy T. Romero, Sr. had suffered a previous work-related injury to his left wrist in the State of Montana which required seven prior surgeries, including the implantation of a prosthetic device in the wrist and for which he received workers' compensation benefits in the State of Montana.

4. There was no factual dispute concerning the previous injuries sustained by Mr. Romero to his left wrist, nor the medical treatment provided prior to July 1990.

5. Having reviewed the extensive medical testimony provided in this matter through the depositions of Drs. R.N. Hans[e]n and Patrick McDonald, the Office finds that Employee-Claimant Timothy T. Romero, Sr.'s current condition did not arise out of or in the course of employment while at work for Employer Davy McKee Corporation.

6. As such, Employee-Claimant Timothy T. Romero, Sr. has not met the required burden of proof set out in Wyoming Statutes § 27-14-603(a) or 27-14-102(a)(xi).

7. The Office finds that where, as here, the medical conditions involved are complex, the testimony of the medical experts is important and helpful.

8. Having carefully reviewed the transcripts of the medical experts presented by the parties prior to the hearing, the Office finds that the testimony of Employer's expert, Dr. Patrick McDonald, [is] the more persuasive medical view as to what took place and adopts his view that Employee-Claimant's wrist condition was the result of a degenerative process which occurred over a long period of time.

9. As such, the Office finds that nothing in Employee-Claimant Timothy T. Romero Sr.'s employment with Davy McKee Corporation materially contributed to, aggravated or accelerated the pre-existing conditions in Employee-Claimant Romero's left wrist and that the loosening process which affected Employee-Claimant's left wrist prosthesis began prior to his employment with Davy McKee Corporation and continued during that time. It was not materially aggravated by the scope and course of employment with Davy McKee Corporation.

The hearing examiner disallowed Mr. Romero's claim but did not require reimbursement of previously awarded interim temporary total disability benefits. The Workers' Compensation Division alerted Mr. Romero and his health care providers that his claims could be submitted in Montana under his previous claim there.

On June 15, 1992, Mr. Romero filed a petition for review in the district court. The Workers' Compensation Division was joined in the review proceedings as a respondent. On October 9, 1992, the district court issued an order affirming the hearing examiner's decision:

Petitioner [Romero] argues that the relevant inquiry in this matter is whether the loosening was causally connected to his employment as a pipefitter[;] if so, he is entitled to benefits. Petitioner relies upon W.S. § 27-14-603(a)(i):

(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; ...

This provision must be read in pari materia with the definition of "injury" at W.S. § 27-14-102(a)(xi) which provides that "injury" does not include "[a]ny injury or condition preexisting at the time of employment with the employer against whom a claim is made."

A preexisting injury may present a compensable claim "[']if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the ... disability for which compensation is sought....['] 1 Larson's Workmen's Compensation Law, § 12.20, p. 3-276." Lindbloom v. Teton International, 684 P.2d 1388, 1390 (Wyo.1984). A claim for aggravation of a preexisting injury requires proof that the "work effort contributed to a material degree to the precipitation, aggravation or acceleration of the existing condition of the employee. [Citation omitted.]" (Emphasis added.) Lindbloom, supra at 1389-90. This is the analysis, or rather standard, used by the hearing examiner.

The hearing examiner found that nothing in Romero's employment with McKee "materially contributed to, aggravated or accelerated the pre-existing conditions in [his] left wrist ..." This finding is supported by substantial evidence in the testimony of Dr. McDonald. He viewed the loosening as a degeneration over a period of time, and not the result of any incident while in the employ of McKee. The record supports the proposition that while the loosening continued to occur during the employment with McKee, the work effort did not materially contribute, aggravate, or accelerate this condition.

This Court cannot substitute its discretion for that of the hearing examiner as to factual disputes. The inquiry at this level of review commences with a search in the record for substantial evidence to support the findings. If such evidence is found in the record, the inquiry comes to an end. Lindbloom, supra at 1389.

Our task is to examine the entire record to determine if substantial evidence exists to support the hearing examiner's findings. We will not substitute our judgment for that of the hearing examiner if his decision is supported by substantial evidence. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Farman v. State ex rel. Wyoming Workers' Compensation Division, 841 P.2d 99, 102 (Wyo.1992).

Mr. Romero had worked as a pipefitter for more than ten years prior to the incident which gave rise to this appeal. In 1985, while working in Montana, Mr. Romero suffered an on-the-job injury which resulted in many surgeries being performed on both of his wrists. The injury was the subject of a worker's compensation claim filed in Montana, and that matter was settled for approximately $50,000. Mr. Romero's medical history, as it affects the issues raised in this appeal, is well summarized in a letter ² written by his primary physician, Jeffrey N. Hansen, M.D.:

I certainly know Tim quite well and have taken care of him for about 6 years. The problem that he has with his left wrist is an ongoing one and has presented great difficulty. The problem initially was wrist ligament...