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State11/19/2004
ivision, 2002 WY 62, , 44 P.3d 90, (Wyo. 2002); see also State ex rel. Wyoming Workers' Compensation Division v. Jacobs, 924 P.2d 982, 984 (Wyo. 1996). To satisfy part of that burden, the claimant must prove the injury occurred in the course and scope of employment. Logue, 2002 WY 62, ; State ex rel. Wyoming Workers' Compensation Division v. Espinoza, 924 P.2d 979, 981 (Wyo. 1996).
Section 27-14-603(a) sets forth the claimant's burden of proving an injury which occurred over a substantial period of time:
(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 ;
(ii) The injury can be seen to have followed as a natural incident of the work as a result of the employment;
(iii) The injury can fairly be traced to the employment as a proximate cause;
(iv) The injury does not come from a hazard to which employees would have been equally exposed outside of the employment; and
(v) The injury is incidental to the character of the business and not independent of the relation of employer and employee.
This Court recently refined the standard of review for worker's compensation cases in Newman v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2002 WY 91, 49 P.3d 163 (Wyo. 2002). We held "the substantial evidence test is the appropriate standard of review in appeals from WAPA contested case proceedings when factual findings are involved and both parties submit evidence." 2002 WY 91,
. "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a scintilla of evidence." Jensen, 2001 WY 51, (citation omitted).
In this case, both parties submitted evidence, and the hearing examiner made findings of fact; therefore, this court applies the substantial evidence test to the Division's appeal.
[ ] The Division pins its hope for success on appeal on the argument that Parrish's back condition is a pre-existing degenerative back condition occurring over a substantial period of time from 1977 to 1994 before his Excal employment and Parrish failed to present any evidence that his current back problems arose from a material aggravation of that pre-existing degenerative back condition. Our applicable standard of review in such case was recently expressed in Salas v. General Chemical, 2003 WY 79, -11, 71 P.3d 708, -11 (Wyo. 2003):
An "injury" does not include a "condition pre-existing at the time of employment with the employer against whom a claim is made." Wyo. Stat. Ann. ยง 27-14-102(a)(xi)(F) (Michie 1997). The burden is upon the claimant to prove that his work accident, not his pre-existing condition, caused the necessity for the surgery. Matter of Corman, 909 P.2d 966, 970 (Wyo. 1996); Matter of Claim of Fortier, 910 P.2d 1356, 1358 (Wyo. 1996). While aggravation of a pre-existing condition is a compensable injury , Matter of Injury to Carpenter, 736 P.2d 311, 312 (Wyo. 1987), claimant must prove that his employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Romero v. Davy McKee Corp., 854 P.2d 59, 61 (Wyo. 1993); Lindbloom v. Teton Int'l, 684 P.2d 1388, 1390 (Wyo. 1984).
State ex rel. Wyoming Workers' Compensation Div. v. Roggenbuck
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