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Pino v. State2/17/2000
he law, and the reviewing court may substitute its own judgment if the decision does not comport with the law. Matter of Cordova, 882 P.2d 880, 882 (Wyo. 1994). We also have ruled that in an instance in which a hearing examiner=s Adecision shocks the conscience of the court and appears to be so unfair and inequitable that a reasonable person could not abide it,@ such a decision can be reversed for an abuse of discretion. Matter of Goddard, 914 P.2d at 1238 (citing State ex rel. Wyoming Workers= Compensation Div. v. Rivera, 796 P.2d 447, 451 (Wyo. 1990)).
As the hearing examiner correctly ruled, Pino had the burden of establishing all the statutory elements which comprise a compensable injury by a preponderance of the evidence. Matter of Worker=s Compensation Claim of Thornberg, 913 P.2d 863, 866 (Wyo. 1996). The statute defines an injury as Aany harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer * * *.@ Wyo. Stat. Ann. ' 27-14-102(a)(xi) (Michie 1991). To satisfy that burden, Pino was required to establish by a degree of medical probability that the 1995 injury was a contributing cause to the 1997 injury in order to have his claim honored. It is undisputed that the injury Pino suffered in 1995 met the requirements of the statute. The focal issue before this Court is captured by this language, Ain order for a second injury to be compensable, the original compensable injury must itself be the direct cause of the subsequent injury.@ State ex rel. Wyoming Workers= Safety and Compensation Div. v. Bruhn, 951 P.2d 373, 377 n.1 (Wyo. 1997).
Whenever disparate results are obtained by those similarly situated, the specter of an arbitrary or capricious decision must be confronted and resolved. Wyoming has long recognized the proposition that a job -related injury can cause damage that is not immediately apparent or necessarily subject to treatment at the time. In Casper Oil Co. v. Evenson, 888 P.2d 221, 224-25 (Wyo. 1995), we said:
The basic rationale behind the second compensable injury rule is well stated in [Baldwin v.] Scullion, [50 Wyo. 508, 530-31,] 62 P.2d [531,] at 539 [(1936)]:
t seems to us palpably unjust to the employee to deny him compensation because he has tried to keep his place on the employer=s pay roll by doing his regular work and then has found that conditions produced at the time of the accident, and which medical science could not recognize or whose final consequences it could not forecast, have gradually and ultimately produced a compensable injury . We do not think the language employed in the law by our State Legislature was reasonably intended to produce any such result.
This rationale remains persuasive and we apply it in our analysis today. See, Matter of Krause, 803 P.2d 81, 82 (Wyo.1990); Pacific Power & Light Co. v. Rupe, 741 P.2d 609, 610 (Wyo.1987); State ex rel. Wyoming Workers= Compensation Div. v. Malkowski, 741 P.2d 604, 605 (Wyo.1987); Matter of Barnes, 587 P.2d 214, 218-19 (Wyo.1978) and Baldwin v. Scullion, 50 Wyo. 508, 530-31, 62 P.2d 531, 539 (1936).
Matter of Barnes, 587 P.2d 214 is remarkably similar to the case before us. Barnes was injured in 1967 and filed a timely claim. Id. at 215. Barnes suffered an acute back strain and his physician noted that if his back trouble continued, a spinal fusion would be required. Id. at 216. Barnes underwent fusion surgery in February of 1976. Id. He filed a petition to reopen his case in June of 1976. Id. Attached to the petition was a note from his physician
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