Duran v. Aabalon Moving Services

930 P.2d 1250, 1997 Wyo. LEXIS 12, 1997 WL 17928
CourtWyoming Supreme Court
DecidedJanuary 21, 1997
DocketNo. 96-59
StatusPublished

This text of 930 P.2d 1250 (Duran v. Aabalon Moving Services) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duran v. Aabalon Moving Services, 930 P.2d 1250, 1997 Wyo. LEXIS 12, 1997 WL 17928 (Wyo. 1997).

Opinion

STEBNER, District Judge.

Appellant, Elmer Duran (Duran), appeals the denial of worker’s compensation benefits for a herniated disk. The hearing examiner issued an order denying benefits, finding that Duran had failed to prove the compensability of his back injury. Duran subsequently filed a petition for review to the district court, which was certified to this court pursuant to W.R.A.P. 12.09(b).

We affirm.

I. ISSUES

Duran presents the following issues:

I. Whether the opinion of a witness is in itself substantial evidence on which to base a finding if the opinion assumes facts not in evidence and is the only évidence to support the finding.
II. Whether the Appellant met his burden of proof that he suffered a back injury in the course of his employment.

Appellee, Aabalon Moving Services, frames the issue as:

Is there substantial evidence to support the hearing officer’s finding that Appellant did not meet his burden of proof that he sustained a work related back injury?

Appellee, State ex rel. Wyoming Workers’ Safety and Compensation Division (Division), states the issue as:

Whether the record supports the Office of Administrative Hearings’ determination that Claimant faded to prove that his back injury, for which he sought workers’ compensation benefits, arose out of and in the course of his employment.

II. FACTS

Duran, a furniture' mover employed by Aabalon Moving Services, was injured on April 22,1994. He was carrying a twenty to thirty pound box when he tripped on a crack [1252]*1252or depression in the cement floor and twisted his left ankle. He returned to work the next day, but did no heavy lifting.

On April 25, 1994, due to continuing discomfort, Duran went to the emergency room at United Medical Center West in Cheyenne, Wyoming where he was diagnosed as suffering from a sprained ankle and was referred for further treatment to Dr. Davis, an osteopathic surgeon who had previously treated Duran. The next day, Duran completed the Division’s injury report noting only an injury to his left foot.

Dr. Davis examined Duran on April 28, 1994, at which time Duran told Dr. Davis that he had twisted his left ankle at work. Dr. Davis placed a short cast on Duran’s left ankle, which was removed on May 25, 1994. Upon the recommendation of Dr. Davis, Duran contacted Walynn Smith (Smith), a licensed physical therapist, who treated Duran three times a week from May 31 until July 1, 1994. Within the first few weeks of therapy, Duran began to complain to Smith of pain in his hip area. On June 6, 1994, Duran filed an amended injury report which identified injury not only to his foot, but his leg and back as well.

Dr. Davis’ records reflect that on June 8, 1994, Duran informed Dr. Davis that he had injured his back when he hurt his ankle, and “that it started really bothering him when he was doing his exercises for the ankle.” Dr. Davis conducted an examination as a result of Duran’s complaint, but found no indication that the pain was related to the work injury. Duran again complained to Dr. Davis of pain in his hip area on June 27, 1994. At that time, Dr. Davis noted that he did not believe the pain was related to the ankle injury and advised Duran to return to work the next week.

On July 1, 1994, the day after he was to return to work, Duran was examined by Dr. Joseph C. Dobson at the University of Wyoming Family Practice Center. Duran told Dr. Dobson that he “twisted his ankle at work and broke it as well as had a little bit of back pain.” Duran also toldfDr. Dobson that he had experienced back pain previously, but that it had healed without medical attention. Dr. Dobson diagnosed “low back strain.”

At his follow up visit, Duran again reported back pain and stated his belief that the physical therapy had contributed to the problem. Dr. Dobson then referred Duran to a colleague, Dr. Michael LeFever, for osteopathic manipulation.

Dr. LeFever began his treatment of Duran on July 14, 1994. Duran told Dr. LeFever that he had “fractured” his ankle in April and had experienced low back pain which had “waxed and waned” since that time, but had reached a plateau. On August 17, 1994, Dr. LeFever wrote a letter expressing his opinion, based on the July 14th examination, that Duran’s lower back pain was “aggravated by his recent ankle injury.”

The record contains no further medical treatment until February 1995. At that time, Duran again visited the University of Wyoming Family Practice Center where an MRI and X-rays revealed that Duran had a herniated disk.

Although Duran received benefits for the ankle injury, the Division denied Duran’s claims for his back injury. A contested case hearing on the compensability of Duran’s back injury was held on May 3, 1995. The hearing examiner denied Duran’s claim, finding that Duran had failed to prove that he injured his back at work. On February 6, 1996, Duran’s petition for review of the hearing examiner’s decision was certified to this court pursuant to W.R.A.P. 12.09(b).

III. STANDARD OF REVIEW

The oft-stated standard of review upon appeal of an administrative action is found in Wyo. Stat. § 16-3-114 (1990), which provides, in relevant part:

(e) * * * The reviewing court shall:
⅜ ⅜ ⅜ ⅜ * *
(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;
⅜ ⅜ ⅜ ¾: ⅜ ⅜
[1253]*1253(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

With respect to this standard, we recently reiterated:

“Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner’s findings. We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision.' Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions.”

Matter of Fisher, 914 P.2d 1224, 1226 (Wyo.1996) (quoting Latimer v. Rissler & McMurry Co., 902 P.2d 706, 708-09 (Wyo.1995)). The party appealing the agency decision “ ‘has the burden of proving the lack of substantial evidence to sustain the ruling of the agency.’ ” Matter of Fisher, 914 P.2d at 1227 (quoting Jaqua v. State ex rel. Wyoming Workers’ Compensation Div., 873 P.2d 1219, 1221 (Wyo.1994)). If the findings of fact are supported by substantial evidence, this court need only determine whether the conclusion is in accordance with law. If so, the conclusion is affirmed. Wyoming Steel & Fab, Inc. v. Robles,

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Related

State Ex Rel. Wyoming Workers' Compensation Division v. Fisher
914 P.2d 1224 (Wyoming Supreme Court, 1996)
Wyoming Steel & Fab, Inc. v. Robles
882 P.2d 873 (Wyoming Supreme Court, 1994)
Sinclair Trucking v. Bailey
848 P.2d 1349 (Wyoming Supreme Court, 1993)
Latimer v. Rissler & McMurry Co.
902 P.2d 706 (Wyoming Supreme Court, 1995)
Employment Security Commission v. Western Gas Processors, Ltd.
786 P.2d 866 (Wyoming Supreme Court, 1990)
Jaqua v. State ex rel. Wyoming Workers' Compensation Division
873 P.2d 1219 (Wyoming Supreme Court, 1994)

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Bluebook (online)
930 P.2d 1250, 1997 Wyo. LEXIS 12, 1997 WL 17928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duran-v-aabalon-moving-services-wyo-1997.