Dougherty v. J.W. Williams, Inc.
Annotate this Case
Dougherty v. J.W. Williams, Inc.
1991 WY 141
820 P.2d 553
Case Number: 90-174
Decided: 11/13/1991
Supreme Court of Wyoming
PATRICK F. DOUGHERTY, APPELLANT (EMPLOYEE-CLAIMANT),
v.
J.W. WILLIAMS, INC.,
APPELLEE (EMPLOYER-DEFENDANT).
Appeal from the District
Court, NatronaCounty, Dan Spangler,
J.
Mark W. Gifford of Brown
& Drew, Casper, for appellant.
Lawrence E. Middaugh,
Casper, for
appellee.
Before URBIGKIT, C.J.,
and THOMAS, CARDINE, MACY and GOLDEN, JJ.
OPINION
MACY, Justice.
[¶1.] Appellant Patrick F.
Dougherty filed a worker's compensation claim, alleging he injured his back
while he was working for Appellee J.W. Williams, Inc. Williams objected to the
claim.1 The hearing examiner determined
that Dougherty failed to prove his condition arose out of and in the course of
his employment and was not a recurrence of a preexisting condition, and she
denied Dougherty's claim. Dougherty appealed the hearing examiner's decision to
the district court, and the district court affirmed the decision.
[¶2.] We reverse and
remand.
[¶3.] Dougherty poses these
issues:
1. Were the findings
and conclusions of the administrative law judge in the underlying Worker's
Compensation contested case proceeding lacking in statutory right, and thus
unlawful under W.S. § 16-3-114(c)(ii)(C)?
2. Were the findings
and conclusions of the administrative law judge unsupported by substantial
evidence, and thus unlawful under W.S. § 16-3-114(c)(ii)(E)?
3. Were the findings
and conclusions of the administrative law judge arbitrary, capricious, an abuse
of discretion or otherwise not in accordance with the law, and thus unlawful
under W.S. § 16-3-114(c)(ii)(A)?
[¶4.] At the hearing held
before the hearing examiner, the parties focused on the following issues: (1)
Did an on-the-job injury occur; (2) was a preexisting injury aggravated; and (3)
did the employee fail to give notice to the employer as required by Wyo. Stat. §
27-14-502 (1991). Dougherty performed strenuous physical labor for Williams. He
testified he had never been diagnosed as having a back injury and he did not
experience any problems with his back before July 28, 1989. He did have a
motorcycle accident in 1987 in which he suffered a massive hematoma to the right
hip but no injury to his back, and he did not receive any treatment to his back.
On the morning of July 28, 1989, about three weeks after he began working for
Williams, Dougherty was unable to bend over to tie his shoes. He went to work
and reported his condition to his supervisor, telling his supervisor that he was
going to see a doctor. Dougherty also told his supervisor he had a sore back at
times but nothing like the pain he encountered that morning. During
cross-examination, Dougherty identified slippage of pipe wrenches as one of the
events which may have injured his back.
[¶5.] John M. Tooke, M.D.,
examined Dougherty and entered his diagnosis of Dougherty's condition, "Back
m.m. spasm," onto an itemized statement. Dougherty testified the doctor told him
to rest over the weekend and to go to the hospital for physical therapy because
he had obviously suffered a muscle spasm to the right lower back. Dougherty
began therapy with a physical therapist and returned to work on August 1, 1989.
Later, at the insistence of Williams, Dougherty obtained an authorization from
Dr. Tooke allowing him to return to work.
[¶6.] Gail Brown, the
licensed physical therapist who treated Dougherty, also testified. Although
Brown admitted that she could not make a diagnosis (as Dr. Tooke had already
done), she described Dougherty's condition as an acute (recent onset as opposed
to a chronic condition) musculoskeletal strain resulting from a postural trauma
which was caused by his recent activities at work. Brown also reviewed the
medical records pertaining to Dougherty's 1987 motorcycle accident and stated
the records did not reveal the occurrence of any back injury. When she was asked
during cross-examination whether the injury was a usual type, she responded,
"yes, based on his history, the activity he performed the day before, a lot of
times it won't come out until you rest it."
[¶7.] The first of two
witnesses called by Williams was Tom Covert, a service manager for Williams. He
related that Dougherty did not report an on-the-job injury to him but that
Dougherty merely told him he was having trouble with his back and was going to
see a doctor. However, the record shows Covert did sign an employer's report of
injury which stated Dougherty had reported the injury on July 28, 1989. Covert
also stated Dougherty told him that, ever since his motorcycle accident,
Dougherty had occasional problems with his back. Covert agreed Dougherty's work
did involve hard physical labor and heavy lifting. In addition, he testified
Williams had a policy of taking a very close look at back injury claims because
Williams had been "stung" once on a back injury claim.
[¶8.] Arthur Hibbler, an
assembly hand for Williams, was also called as a witness for Williams. He worked
with Dougherty almost every day and related that they did heavy lifting. He also
testified that Dougherty complained about his back hurting one day and said he
was going to see a doctor. Hibbler did not recall Dougherty saying anything
about his back hurting as a result of a motorcycle accident, and he stated
Dougherty had not complained about his back hurting either before or after the
occurrence of the injury which caused him to see a doctor. Hibbler explained
that some of the pipe wrenches which they used in their work were worn, causing
the wrenches to slip, and that, when the wrenches slipped, the workers would get
quite a "jolt."
[¶9.] The hearing examiner
determined that the injury occurred over a substantial period of time; that Wyo.
Stat. § 27-14-603 (1987)2 was the controlling statute; that
Dougherty had the burden to prove by competent medical authority that his claim
arose out of and in the course of his employment; that the testimony of a
licensed physical therapist did not satisfy the burden placed upon Dougherty
because the testimony did not fulfill the requirement of "competent medical
authority"; and that Dougherty failed to prove his condition arose out of and in
the course of his employment and was not a recurrence of a preexisting
condition.
[¶10.] In resolving this case, we employ the
following test:
We examine the entire
record to determine if there is substantial evidence to support an agency's
findings. If the agency's decision is supported by substantial evidence, we
cannot properly substitute our judgment for that of the agency, and must uphold
the findings on appeal. Substantial evidence is relevant evidence which a
reasonable mind might accept in support of the conclusions of the
agency.
Trout v. Wyoming Oil and
Gas Conservation Commission, 721 P.2d 1047, 1050 (Wyo. 1986) (citation omitted),
quoted in State ex rel. Wyoming Workers' Compensation Division v. Hollister, 794 P.2d 886, 891 (Wyo. 1990), and Hohnholt v. Basin Electric Power Co-op, 784 P.2d 233, 234 (Wyo. 1989).
[¶11.] We agree with Dougherty that his claim
was not governed by § 27-14-603. The evidence is uncontradicted that Dougherty
was able to perform hard physical labor both before and after receiving the
injury in question. The injury was the result of a single brief occurrence
(muscle spasm). Wyo. Stat. § 27-14-503 (1991);
Grindle v. State ex rel. Wyoming Worker's
Compensation Division, 722 P.2d 166 (Wyo.
1986); Colorado Fuel & Iron Corp. v. Frihauf, 58 Wyo. 479, 135 P.2d 427
(1943); 1B Arthur Larson, The Law of Workmen's Compensation § 39 (1991). The
hearing examiner erred in applying § 27-14-603 and in denying Dougherty's claim
on the basis of his failure to meet the "competent medical authority" standard.
The hearing examiner's determination that Dougherty failed to prove his
condition arose out of and in the course of his employment and was not a
recurrence of a preexisting condition is also erroneous. The record contains
only a scintilla of evidence that Dougherty's back injury was a recurrence of a
preexisting condition. With the exception of Covert's testimony that Dougherty
told him his back had occasionally acted up since his motorcycle accident, which
Dougherty essentially denied, all the other evidence presented belied the
existence of a preexisting condition. Giving the maximum possible credence to
Covert's testimony, we observe the record shows Dougherty might have believed
his back pain was a recurrence from the motorcycle injury. If he did believe
that at the time he talked to Covert, he was wrong in so believing. We are
compelled to reverse the hearing examiner's determination.
[¶12.] Reversed and remanded to the district
court with directions that the case be further remanded to the hearing examiner
and that Dougherty receive all worker's compensation benefits documented in his
claim.
[¶13.] THOMAS and CARDINE, JJ.,
dissent.
FOOTNOTES
1 The claim was in the
amount of $1,424.88 for the services of a physical therapist, prescription
medications, and a physician's fee. Dougherty made no claim for lost wages or
for temporary or permanent disability.
2 Section 27-14-603(a)
provides in pertinent part:
(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. . . .
Subsection (e) was added
to § 27-14-603 by 1991 Wyo. Sess. Laws ch. 90, § 1 effective July 1,
1991.
THOMAS, Justice,
dissenting.
[¶14.] Like Justice Cardine, I must dissent from
the opinion of the court in this case. I agree with the perceptive comments of
Justice Cardine with respect to the burden of proof. However, I have some
additional concerns with the majority decision in this instance.
[¶15.] Even though Section 27-14-603, W.S. 1977
(June 1991 Repl.), is not applicable, as the majority holds, we still have an
historic requirement that there be medical testimony to establish a causal
relationship between an occurrence on the job and the claimed injury. Black
Watch Farms v. Baldwin, 474 P.2d 297 (Wyo. 1970). Other cases suggest the necessity
for establishing the nexus between the employment and the injury. Hampton v. All Field
Service, Inc., 726 P.2d 98 (Wyo. 1986); Matter
of Jones, 702 P.2d 1299 (Wyo. 1985);
Consolidated Freightways v. Drake, 678 P.2d 874 (Wyo. 1984). I am unable to find the evidence
introduced by Dougherty in this case that would establish the relationship
between his job and the injury. The case is very like Hampton in the sense that
even Dougherty cannot describe any event on the job that seemed significant. His
problem was that he had difficulty in the morning in attempting to tie his
shoes. There was no expert medical testimony and, even if it were in evidence,
the diagnosis on the receipt from John M. Tooke, M.D. has no reference to any
event that may have induced a "Back m.m. spasm."
[¶16.] While exceptional instances may occur in
which it is not necessary to invoke medical testimony to establish the causal
relationship, In re Frihauf, 58 Wyo. 479, 135 P.2d 427 (1943), it is also clear
that the finder of fact need not accept the statements of the claimant as to the
causal relationship. Parkel v. Union Pacific Coal Co., 69 Wyo. 122, 237 P.2d 634
(1951). It is obvious from the record that Dougherty wanted to rely upon the
testimony of Gail Brown to fill this gap and establish the causal relationship.
Gail Brown is a licensed physical therapist, but she does not come within the
statutory definition of a "health care provider." The statute is limited in a
rather precise way:
"`Health care provider'
means doctor of medicine, chiropractic or osteopathy, dentist, optometrist,
podiatrist or psychologist, acting within the scope of his license, licensed to
practice in this state or in good standing in his home state; . . . ." §
27-14-102(a)(x), W.S. 1977 (June 1991 Repl.).
In determining whether a
causal relationship is supported by competent medical authority, I would limit
that class of witnesses to those who are identified as health care providers in
the statutory definition. Absent the expertise to draw the conclusion of a
nexus, the testimony of Gail Brown becomes hardly more than sheer conjecture
and, certainly, nothing upon which the hearing officer was required to rely,
even if it was admitted.
[¶17.] Reduced to salient matters, this record
demonstrates that Dougherty worked at a job that involved strenuous physical
labor. One morning he was unable to bend over to tie his shoes. He was unable to
identify any event on the job that caused his injury, although he speculated
about that. There is a diagnosis in the file made by a medical doctor, but it
does not relate to any event that may have caused the injury. A physical
therapist testified that she could not make a diagnosis, but she ventured an
opinion that Dougherty's injury was caused by his recent activities at work.
That witness also stated that, "Based on my previous experience with low back
injuries, they can be a chronic thing." This testimony presents an interesting
contrast with the assumptions of fact in the majority opinion. Even if the
witness could be considered a "competent medical authority," can such
contradictory testimony really sustain a conclusion contrary to that of the
hearing examiner that Dougherty met his burden of proof?
[¶18.] Apparently, because no specific event
could be identified, and because Dougherty had told his supervisor that he had a
sore back at times, the hearing examiner identified the injury as one that had
occurred over a period of time, which was subject to the provisions of Section
27-14-603, W.S. 1977 (June 1991 Repl.). As I have indicated, even if that were
an erroneous ruling, this still is a case in which the nexus appropriately
should be established by competent medical authority. I do not find that demand
to have been satisfied.
[¶19.] I would affirm the decision of the
district court in which the decision of the hearing examiner was
affirmed.
CARDINE, Justice,
dissenting.
[¶20.] I dissent. The majority, with limited
discussion, dismisses the hearing examiner's factual finding that Dougherty
failed to link his injury to his employment with J.W. Williams, Inc. (Williams).
Under the Worker's Compensation Act, an injury "means any harmful change in the
human organism * * *." W.S. 27-14-102(a)(xi). The burden is on the injured
claimant to establish every essential element of his claim by a preponderance of
the evidence. Hohnholt v. Basin Electric Power Co-op., 784 P.2d 233, 235
(Wyo. 1989).
Dougherty, as the claimant, therefore had the burden to prove by a preponderance
of the evidence that his "injury" arose out of and during the course of his
employment. See Hohnholt.
[¶21.] After a review of the evidence, the
hearing examiner found that Dougherty failed to meet this burden. The majority
conducts its own review of the evidence and finds that Dougherty's injury did
arise out of and during the course of his employment with Williams.
[¶22.] The role of the court is not to
substitute its findings for those of the hearing examiner. Our role is to
determine whether there is "substantial evidence" to support the factual
findings of the hearing examiner. Here, the record contains substantial evidence
to support the finding that Dougherty did not prove by a preponderance of the
evidence that his injury arose from his employment with Williams. During
cross-examination, Dougherty acknowledged that he was not able to point to any
"activity" at work that "actually did it [injury]." Covert, the service manager
for Williams, testified that Dougherty told him "that ever since that
[motorcycle] accident, he had had problems with his back flaring up on
occasion."
[¶23.] The majority dismisses this testimony as
mistaken and finds that Dougherty was "wrong in believing" that his
injury was a reoccurrence of his motorcycle accident. Based on its own
independent evaluation of the evidence before the hearing examiner, the majority
concludes that "[t]he injury was the result of a single brief occurrence (muscle
spasm)," maj. op. at 555, and, therefore, not the result of a chronic condition.
But a chronic condition may be one that ebbs and flows. Some days a chronic back
may hurt, other days it may be symptomless. When it does hurt, there may be
muscle spasm which is a cause of pain. The fact that the muscle spasm may have
been the result of a single brief occurrence does not mean, therefore, that the
hearing examiner erred. That single brief occurrence may - as the hearing
examiner apparently concluded - date back to the motorcycle accident and may not
be due to his employment with Williams.
[¶24.] The point is that it is not the role of
this court to second-guess the fact finder - and if we are going to start making
our own factual findings and conclusions, perhaps it would be helpful to amend
the current standard of review to reflect our new role. The evidence presented,
when analyzed under the appropriate standard of review, is sufficient to affirm
the findings and conclusions of the hearing examiner.
[¶25.] I would affirm.
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