Summary 2011 WY 14

Summary of Decision February 2, 2011

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Case Name: Kenyon v. State of Wyoming, ex rel. Wyoming Workers’ Safety and Compensation Division

Docket Number: S-10-0091

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461719

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge

Representing Appellant (Petitioner): Donna D. Domonkos, Cheyenne, Wyoming.

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Date of Decision: February 2, 2011

Facts: Appellant sought worker’s compensation benefits for arthroscopic right knee surgery necessitated by a work-related injury and for a subsequent total knee replacement. After a contested case hearing, the Office of Administrative Hearings (OAH) awarded benefits for the arthroscopic surgery and related treatment but denied benefits for the total knee replacement, ruling that she did not satisfy her burden of proving that her work related injury necessitated that procedure. She then petitioned for judicial review and the district court affirmed the OAH decision.

Issues: Whether the hearing examiner failed to identify and apply the second compensable injury rule and its associated burden of proof. Whether the hearing examiner incorrectly accepted the Division’s expert’s medical opinion instead Appellant’s treating physician’s opinion. Whether the hearing examiner improperly concluded that Appellant was not a credible witness.

Holdings: An employee who has a pre-existing condition may recover if employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. To prove aggravation of a preexisting condition, a claimant must demonstrate by a preponderance of the evidence that the work contributed to a material degree to the aggravation of the condition. Under the second compensable injury rule, Appellant would be entitled to benefits for the total knee replacement if the injury incurred at work and ripened into the condition requiring total knee replacement. It is clear that the hearing examiner considered whether the total knee replacement was caused by her work injury (thus, a second compensable injury) or her preexisting condition. Regardless of whether the issue was phrased in terms of a second compensable injury ruling or not, the Office of Administrative Hearings (OAH) considered the proper question in this case.

A claimant generally has the burden of proving each of the essential elements of her claim by a preponderance of the evidence. As a part of that burden, the claimant must prove a causal connection exists between a work-related injury and the injury for which worker’s compensation benefits are being sought. The definition of preponderance of the evidence is “proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence. Preponderance of the evidence is the same as “more probable than not.” Thus, the burden of proof for a second compensable injury is no different than the burden applied to all claimants to show the causal connection between their injuries and their work. The hearing examiner in this case repeatedly stated that Appellant was obligated to prove the causal connection between her injury and the employment “by a preponderance of the evidence.” Therefore, the OAH applied the correct burden of proof.

In the present action, the OAH’s decision included a detailed review of two physicians’ medical opinions and a careful explanation of why it accepted one opinion over the other. The underlying facts, including a lapse in medical treatment, Appellant’s active lifestyle after prior surgery, and the medical evidence showing that she had significant preexisting osteoarthritis supported the opinion that Appellant’s preexisting condition, rather than the work injury, led to her total knee replacement. The OAH decision to accept one opinion over the other was based on relevant evidence that a reasonable mind might accept as supporting that decision.

A review of the transcript shows that Appellant was not overtly ordered or instructed by the hearing examiner to answer the questions more thoroughly. However, it does appear that her answers were, at times, evasive and not entirely forthcoming. Moreover, the hearing examiner was in the room with Appellant. He had the opportunity to observe the witness and hear her testimony and was, therefore, in the best position to judge her demeanor, truthfulness and veracity. Under these circumstances, the Court will defer to the hearing examiner’s findings that Appellant was not completely credible and conclude there was substantial evidence to support them.

Affirmed.



C.J. Kite delivered the opinion for the court.