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State11/19/2004
on our review of the entire record, 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. Ludwig v. State ex rel. Workers' Safety and Compensation Div., 2004 WY 34, , 86 P.3d 875, (Wyo. 2004).
[ ] Moreover, even if a conclusion can be reached that the OAH improperly found that Parrish's injuries were caused solely by his Excal, Inc. work over a substantial period of time, sufficient evidence was presented to prove that Parrish's employment at Excal, Inc. actually either caused his back injuries, or at least contributed to a material degree to the aggravation of his pre-existing degenerative back condition. Finally, for the same reasons noted above, we conclude that the bending incident in 1999 and Parrish's fall on the ice in November 2000 were considered by OAH, yet the OAH properly rejected such evidence as having a causal connection to Parrish's work-related injuries.
CONCLUSION
[ ] Upon careful examination of the entire record, we hold that OAH's decision is supported by substantial evidence. Affirmed.
GOLDEN, J., dissenting, in which VOIGT, J., joins.
[ ] I respectfully dissent. Parrish pursued his claim under Wyo. Stat. Ann. § 27-14-603(a), contending that his degenerative lumbosacral "injury" occurred over a substantial period of time and arose out of and in the course of his Excal employment. The Division opposed his claim, contending, among other things, that Parrish's degenerative lumbosacral "injury" was a "condition pre-existing at the time of employment with [Excal]" and, therefore, did not satisfy the definition of "injury" under the Workers' Compensation Act. Wyo. Stat. Ann. § 27-14-102(a)(xi)(F) (LexisNexis 2003).
[ ] Parrish's report of injury and its attachment made no mention of a pre-existing condition claim; Parrish's contested case disclosure statement made no mention of a pre-existing condition claim. Neither Parrish's opening statement nor his closing argument at the contested case hearing expressed a pre-existing condition claim. Importantly, the hearing examiner's decision is clearly not an "aggravation-of-pre-existing condition" decision. Importantly, Dr. Stenfors-Dacre did not express any opinion that Parrish's work effort in the six years of Excal employment, in contrast to the previous sixteen plus years of chronic repetitive heavy lifting and hard physical labor for other employers, contributed in a material fashion to the aggravation of Parrish's degenerative back condition. The record is pregnant with evidence that Parrish's degenerative lumbosacral "injury" pre-existed Parrish's Excal employment.
[ ] The majority opinion states that it sees "little difference" in Parrish's contested case position that his "injury" had occurred over a substantial period of time while employed by Excal and a contention that his Excal work materially contributed to the aggravation of his pre-existing "injury." The "difference" is much more than "little." It has to do with Parrish's burden of proof. He must prove that his Excal work contributed to a material degree to the aggravation of his pre-existing degenerative lumbosacral condition. That is the determinative fact in this case and, on this record, Parrish failed to produce substantial evidence of that determinative fact. Tellingly, Dr. Stenfors-Dacre, upon whom Parrish relies, did not express any opinion that Parrish's six years' work at Excal contributed in a material fashion to the aggravation of Parrish's pre-existing degenerative lumbosacral condition.
[ ] I think the majority has impermissibly both reframed the issue on whic
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