 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hurley v. PDQ Transport5/10/2000
ent in June of 1996 when she was "knocked into a cabinet." She claimed that the pain had been constant since that incident. She was given nerve root injections at L4 and L5 during the winter of 1997, and she was admitted to the hospital on February 12, 1997, because of increasing low back pain and radicular type symptoms. She was diagnosed with lumbar disk disease and underwent a partial laminectomy at L4-L5 and filed a claim for benefits that was denied. In March of 1997, at the Division's request, orthopedic surgeon, Dr. Weiner, reviewed Hurley's medical file and noted that the September 30, 1996, MRI was the first documented evidence of low back pain and determined that her lower back pain was not caused by her 1991 injuries but was primarily due to degenerative disk disease possibly aggravated by the domestic violence incident. Dr. Weiner found the chiropractic notes and diagnosis unreliable and stated that degeneration at this level of the spine is extremely common and most likely not related in any way to the head trauma Hurley suffered in 1991.
An independent medical examiner, Dr. Walker, determined that the cause of the herniated disk rupture was the 1991 injury and not the 1996 domestic violence injuries. The Medical Commission held a hearing on April 13, 1998, and issued a written decision concluding that Hurley failed to show by a preponderance of the evidence that her disk disease is related to the 1991 work-related injury and denying benefits. The district court affirmed, and this appeal followed.
DISCUSSION
Standard of Review
A claimant requesting worker 's compensation benefits has the burden of proving all essential elements of a claim by a preponderance of the evidence. Carrillo v. State ex rel. Wyo. Workers' Safety and Comp. Div., 987 P.2d 690, 692 (Wyo. 1999). To prove by a preponderance of the evidence, the claimant must bring forth "proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence." Thornberg v. State ex rel. Workers' Comp. Div., 913 P.2d 863, 866 (Wyo. 1996) (quoting Scherling v. Kilgore, 599 P.2d 1352, 1359 (Wyo. 1979)).
When the party charged with the burden of proof has failed to meet that burden, we review the case under the arbitrary, capricious, abuse-of-discretion, or otherwise not in accordance with law standard. Keck v. State ex rel. Wyo. Workers' Safety and Comp. Div., 985 P.2d 430, 432 (Wyo. 1999); City of Casper v. Utech, 895 P.2d 449, 452 (Wyo. 1995).
Under the arbitrary, capricious and abuse of discretion standard, we are charged with examining the entire record. Wyo. Stat. Ann. ยง 16-3-114(c) (Lexis 1999); Utech, 895 P.2d at 452. In our examination and review of a hearing examiner's determination, we defer to the hearing examiner's findings of fact. Pederson [v. State, ex rel. Worker 's Comp. Div.], 939 P.2d at 742 [(Wyo. 1997)]; [Wyoming Steel & Fab., Inc. v.] Robles, 882 P.2d at 875 [(Wyo. 1994)]. We will examine conflicting and contradictory evidence to see if the hearing examiner reasonably could have made its findings based on all the evidence before it. Pederson, 939 P.2d at 742, and cases therein cited. The findings of fact may include determinations of witness credibility, as the hearing examiner is charged with determining the credibility of the witnesses. Pederson, 939 P.2d at 742; Utech, 895 P.2d at 451. In our review, we will not overturn the hearing examiner's determinations regarding witness credibility unless they are clearly contrary to the overwhelming weight of the evidence. Nellis v. Dep.t of Transp., 932 P.2d 741, 743 (Wyo. 1997); Pederson, 939 P.2d at 742; Robles, 882 P.2d at 875.
Carrillo,
Page 1 2 3 Wyoming Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|