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In re Worker's Compensation of Leavitt5/25/1999
Appeal from the District Court of Teton County Honorable D. Terry Rogers, Judge
* retired November 2, 1998
Charles Leavitt appeals from the district court's order affirming a hearing examiner's denial of worker 's compensation benefits for Leavitt's neck injury. After hearing testimony from several doctors and Leavitt in a contested case hearing, the hearing examiner determined that, while Leavitt's shoulder injury was incurred in the performance of his employment, his neck injury was not. We uphold factual determinations of administrative agencies, including the determination that an injury occurred outside the course of employment, if they are supported by substantial evidence. The Division's doctor and Leavitt's own physician, once apprised of Leavitt's post-operative activities, opined that Leavitt's neck injury was not work-related, but was likely sustained when he fell while pushing his wife's car out of the snow. Substantial evidence supports the hearing examiner's decision; therefore, we affirm.
ISSUES
Appellant Leavitt presents this statement of the issue:
Whether the record contains substantial evidence to support the hearing examiner's determination that Claimant's injury did not arise out of and in the course of his employment.
The Appellee Division responds:
The Employee injured his shoulder lifting buckets of rock at work. Six months later, after two intervening accidents, his doctors discovered a neck injury. A. Was the denial of benefits for the Employee's neck injury supported by substantial evidence?
FACTS
Leavitt was employed as a carpenter's helper in November of 1995. On November 6, 1995, while carrying buckets of rock weighing between one hundred and one hundred and fifty pounds, Leavitt was injured. On November 17, 1995, Leavitt filed a report of occupational injury stating that he suffered an injury to his right shoulder while carrying fireplace rock in five gallon buckets. Leavitt sought medical treatment and was eventually referred to Dr. James Champa, who ordered testing for a possible rotator cuff tear. When that testing came up negative, Dr. Champa referred Leavitt to Dr. Franklin Rivers, who diagnosed a problem with Leavitt's AC joint. Leavitt underwent an operation on his shoulder for this condition on January 22, 1996.
Immediately after surgery, Leavitt continued to experience pain in his shoulder. On February 8, 1996, Leavitt went to the hospital emergency room to seek care from Dr. Martha S. Hageman. Leavitt reported that he re-injured his shoulder and was experiencing pain in the back of his neck. According to Dr. Hageman, Leavitt told her he was pushing his wife's car out of the snow and felt a pain go through his shoulder and neck as they were being strained.
After undergoing physical therapy, Leavitt returned to the care of Dr. Champa in April of 1996. Dr. Champa determined Leavitt's condition had not improved and suspected an injury to Leavitt's neck. An MRI of Leavitt's neck indicated a herniated disk at the C5-6 level. Eventually, Dr. Kenneth Lambert performed a subacromial decompression of Leavitt's right shoulder on July 30, 1996, and performed a cervical fusion on Leavitt's neck on September 10, 1996.
The Division denied benefits for Leavitt's neck and arm problems on November 22, 1996, pursuant to a medical file review performed by Dr. Robert G. Weiner. Leavitt requested a hearing on the denial. After a contested case hearing, the hearing examiner approved benefits for the shoulder injury, but denied benefits for the neck injury. Leavitt filed a petition for review of the administrative action with the Dist
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