Rice v. STATE EX REL. WORKERS'SAFETY AND COMP. DIV.

2001 WY 21, 19 P.3d 508
CourtWyoming Supreme Court
DecidedFebruary 28, 2001
Docket00-133
StatusPublished
Cited by1 cases

This text of 2001 WY 21 (Rice v. STATE EX REL. WORKERS'SAFETY AND COMP. DIV.) 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
Rice v. STATE EX REL. WORKERS'SAFETY AND COMP. DIV., 2001 WY 21, 19 P.3d 508 (Wyo. 2001).

Opinion

19 P.3d 508 (2001)
2001 WY 21

In the Matter of the Worker's Compensation Claim of David RICE, Appellant (Petitioner/ Employee-Claimant),
v.
STATE of Wyoming ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. 00-133.

Supreme Court of Wyoming.

February 28, 2001.

*509 Representing Appellant: Donald L. Painter, Casper, WY.

Representing Appellee: Gay Woodhouse, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; David L. Delicath, Assistant Attorney General. Argument by Mr. Delicath.

Before LEHMAN, C.J., and THOMAS,[*] GOLDEN, KITE, JJ., and SPANGLER, D.J. (Ret.).

GOLDEN, Justice.

[¶ 1] Appellant David Rice was denied worker's compensation benefits for a claim of injury resulting from chemical exposure, and he appeals. Following a hearing, the hearing examiner found that Rice neither timely filed an injury report nor proved by a preponderance of the evidence all elements of his claim. We hold that the finding that his injury report was not timely filed is clearly contrary to the weight of the evidence, but uphold the conclusion that Rice did not prove his injury by a preponderance of the evidence and affirm the order denying benefits.

*510 ISSUES

[¶ 2] Rice contends that the issues presented by this appeal are:

1. Whether Appellant's injury was not timely verbally reported.
2. Whether Appellant failed to timely file a written report of his injury.
3. Whether there is substantial evidence to support denial of Appellant's claim and especially the finding that Appellant's testimony in support thereof was not credible.

The Division restates the issues as:

I. Did the Hearing Examiner correctly find that Appellant failed to timely report his alleged injury?
II. Did the Hearing Examiner correctly find that Appellant failed to prove that his employer was not prejudiced by the untimely filing?
III. Did the Hearing Examiner correctly find that Appellant failed to establish every element of his claim by a preponderance of the evidence?

FACTS

[¶ 3] Rice claimed that during ten-hour shifts, he used a chemical paint stripper called Bix Spray-On Stripper to remove paint from a large oil rig. The parties disputed the date that Rice used the stripper. He claimed that he used it on July 19 and 20, 1998, and his employer claimed that he used it for only one day on August 3, 1998. Rice's employer did not provide protective clothing or gloves, and Rice removed protective eyewear after it became coated with the stripper. No other eyewear was provided. The stripper was in contact with Rice's skin, eyes, and mouth. He inhaled the stripper and unknowingly ingested it after drinking from a nearby cup of soda. Rice began experiencing pain in his shoulder at work, appeared at a hospital emergency room, and received medical treatment for it on July 22, 1998. He timely reported the incident to his employer, Key Rocky Mountain, and the Division, claiming that he did not know how he had hurt his shoulder. The shoulder pain was diagnosed as a possible torn rotator cuff and treated with pain medication, a sling, and rest. The pain eased after a few days, and Rice returned to work.

[¶ 4] Two weeks later, Rice experienced wrist pain and was again seen in the emergency room for debilitating pain. X-rays did not reveal any injury, and the pain was attributed to arthritis. Rice did not file a claim. Pain medication was prescribed, and the symptoms ceased after a few days. Several weeks later, which would be October of 1998, Rice experienced pain in his other wrist and began to suspect that the different episodes in different body parts might be related to chemical exposure. In total, Rice testified that he suffered a series of seventeen episodes of migratory pain; however, according to his testimony, as early as five weeks after the first incident of shoulder pain, he began to suspect the pain was caused by the chemical exposure. On his own, he obtained the material safety data sheet (MSDS) on Bix Spray-On Stripper to investigate the effects of acute and chronic exposure to it. He wrote letters to two different doctors, including his family doctor, Dr. Grinstead, providing the MSDS information and asking if there was a relationship between his exposure and pain, and both doctors said no.

[¶ 5] Rice saw Dr. Grinstead on February 23, and March 8, 1999, for severe pain, and on both occasions Rice indicated that he believed the pain was related to toxin exposure six months earlier. Because all laboratory results were negative, the doctor did not believe there was a relationship. Rice filed an injury report claiming chemical exposure was causing pain in both shoulders and wrist. The Division marked that report as received on March 12, 1999. By request of the Division, Rice was seen by Dr. MacGuire, a rheumatology specialist, on March 16, 1999. She was also provided with the MSDS. Dr. MacGuire reported that it was her impression that Rice's symptoms were inconsistent with those caused by chemical exposure. X-rays of his cervical spine, right wrist and left shoulder revealed degenerative changes. She informed the Division she had concluded that it was "extremely clear" that his symptoms were due entirely to the natural effects of aging and degenerative arthritis.

*511 [¶ 6] Rice's employment with Key Rocky Mountain had been terminated in January of 1999 for reasons unrelated to his health. He testified that pain kept him from working after that, and in July of 1999, Rice saw Dr. Rebecca Painter, an internal medicine specialist. She reviewed blood tests for indications of arthritis and found them to be inconclusive. She determined the normal blood tests and the fact that Rice has improved over time indicated that arthritis was not the cause of his migratory pain. Based on the history he provided, she suspected that the pain was secondary to the chemical exposure, and it would eventually correct itself over a three to five year period because of the body's natural antioxidant mechanisms. Rice underwent a series of chelation treatments and immediately began to improve. Dr. Painter concluded that the improvement indicated that she was treating the cause of his joint pain, and his condition was caused by his exposure to Bix Spray On Stripper.

[¶ 7] Rice's symptoms completely resolved, and he returned to work for a different company on August 7, 1999. The Division denied Rice's March claim for benefits, stating that his medical condition was excluded under the statutory definition of an injury when due to the natural aging process. A hearing was scheduled, and in its disclosure statement the Division raised issues that Rice did not suffer a toxic chemical exposure and failed to timely file an injury claim in accordance with Wyo. Stat.Ann. § 27-14-502(a). At the hearing, the Division presented evidence indicating that Rice had worked with the stripper on August 3, 1998, for one day, disputing his claim that his July 19 and 20, 1998, exposure caused him to require medical treatment at the emergency room on July 22, 1998.

[¶ 8] The hearing examiner denied benefits for reasons that are not entirely clear but apparently ruled against Rice on the preliminary issues of not timely filing an injury report and not having proved that he was injured by a work-related chemical exposure.

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2001 WY 21, 19 P.3d 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-state-ex-rel-workerssafety-and-comp-div-wyo-2001.