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In re Worker's Compensation of Leavitt5/25/1999
rict Court of Teton County, Wyoming, Ninth Judicial District. The district court affirmed the hearing examiner's decision, and Leavitt timely filed a notice of appeal.
STANDARD OF REVIEW
This case comes to us on appeal from the district court's decision to affirm the hearing examiner's denial of benefits. We review "agency action as if the appeal came directly to the supreme court from the agency, according no deference to the district court@'s decision. RM v. Dept. Of Family Services, 953 P.2d 477, 481 (Wyo. 1998).
The sole issue Leavitt presents for our review is whether substantial evidence supports the hearing examiner's denial of benefits for his neck injury. Judicial review of agency action is governed by Wyo. Stat. Ann. ยง 16-3-114(c) (Michie 1997):
"(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:"
"(iii) Hold unlawful and set aside agency action, findings and Conclusions found to be:"
"(E) Unsupported by substantial evidence...." See also W. R. A. P. 12.09(a).
This Court reviews a hearing examiner's finding that an injury occurred outside the course of employment using the substantial evidence test:
"Whether or not an employee's injury occurred in the course of his employment is a question of fact. We review an administrative agency's findings of fact by applying the substantial evidence standard. Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's Conclusions." DeWall v. State of Wyoming, ex rel. Workers' Safety & Compensation Div., 960 P.2d 502, 503 (Wyo. 1998) (citations omitted).
DISCUSSION
In his brief Leavitt argues that his testimony, the testimony of his treating physicians, Drs. Champa and Lambert, and his medical records all indicate that he sustained his neck injury while carrying rock at work. Just as he apparently did before the district court, Leavitt "basically reargues factual issues determined adversely to him by the hearing examiner at the contested case phase... seeks a de novo review of the hearing."
Dr. Lambert provided a written deposition for the hearing, and Dr. Champa testified telephonically. Dr. Champa and Dr. Lambert were of the opinion that both Leavitt's neck and shoulder condition arose from his employment. However, during cross-examination, Dr. Champa testified that he was not aware Leavitt was treated by Dr. Hageman after re-injuring his shoulder while pushing a car. During cross-examination, the following exchange occurred:
"Q: Okay. And if after pushing out this car out of the snow, that Dr. Hageman records as happening in February of 1996, after you operated on him, if after that time Mr. Leavitt is complaining of paresthesia in his right arm, would that change your opinion in regards to the attribution of his C5-6 condition to a work-related injury?"
"A: I'd have to answer that yes."
Leavitt contends that this statement actually supports his position. However, Leavitt fa
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