IN THE MATTER OF THE WORKER'S COMPENSATION BENEFITS CLAIMED BY SHAREN SCHERF, SURVIVING SPOUSE OF ROBERT A. SCHERF, DECEASED EMPLOYEE OF MOUNTAIN CONSTRUCTION COMPANY: SHAREN SCHERF, Appellant (Petitioner),
STATE OF WYOMING, ex rel., DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent)
Appeal from the District Court of Big Horn County. The Honorable Robert E. Skar, Judge.
Representing Appellant: Sky D Phifer of Phifer Law Office, Lander, WY.
Representing Appellees: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; and Samantha Caselli, Assistant Attorney General.
Before BURKE, C.J., and HILL,[*] KITE, DAVIS, and FOX, JJ.
[¶1] Robert Scherf died from a heart attack he suffered at work while servicing a front end loader. His widow Sharen Scherf (Claimant) applied for worker's compensation death benefits, and those benefits were denied. The Office of Administrative Hearings (OAH) upheld the denial of benefits, finding that although the Claimant had proved the required causal link between the work exertion and the heart attack, she had failed to prove that the exertion itself was unusual or abnormal for an employee servicing heavy equipment. The district court affirmed, and this appeal followed. We find the OAH order to be unsupported by substantial evidence and reverse and remand for entry of an order awarding benefits.
[¶2] Claimant presents two issues on appeal, which she states as follows:
1. Was the denial of death benefits for the Claimant as a result of the death of her husband from a coronary condition arbitrary, capricious, an abuse of discretion or contrary to law?
2. Was the denial of death benefits for the Claimant as a result of the death of her husband from a coronary unsupported by substantial evidence?
[¶3] Robert Scherf began working for Mountain Construction Company shortly after the company was formed in 1999 or 2000. Mountain Construction does road construction, primarily highway paving and crushing, throughout Wyoming. During his employment with Mountain Construction, Mr. Scherf worked in a number of positions, including as a truck driver, loader operator,
and oiler. Mike Frost, president of Mountain Construction and one of its co-owners, described Mr. Scherf as one of the company's better hands.
[¶4] Although Mike Frost considered Mr. Scherf one of the company's better hands, Mountain Construction, on June 3, 2011, fired Mr. Scherf. At that time, Mr. Scherf was working as a truck driver and had had a couple of mishaps, first pulling a truck loaded with asphalt into a ditch where it became stuck and shortly thereafter failing to open the tarps on a truck before the truck was reloaded. Nearly immediately after the company fired Mr. Scherf, Mike Frost offered to rehire Mr. Scherf in the position of oiler, which is the position responsible for maintaining the heavy equipment, including fueling the equipment every night, changing oil as needed, greasing equipment, and changing air filters.
[¶5] Mr. Scherf accepted the position of oiler but requested some time off before beginning work as an oiler. In making that request, Mr. Scherf told Mr. Frost that he had not been feeling well, and he felt that this was the reason for his mistakes. Mike Frost told him it was fine to take the time he needed to heal. Mr. Scherf then began work as an oiler on Monday, June 13, 2011, at a jobsite outside Greybull, Wyoming.
[¶6] When Mr. Scherf was out of town for work, it was his routine to talk at least daily with his wife (Claimant), who was home in Lander, Wyoming. In keeping with that routine, Mr. Scherf called Claimant after he completed work on Thursday, June 16, 2011. Claimant described that conversation:
A. * * * Then he called me that Thursday, and told me that he had pulled some rib muscles. He told me that this loader he was servicing was really hard to get the panel out and put it back in. He said, I pulled some rib muscles.
Q. Did he say why it was really hard to pull out?
A. He said it was just really crusted up with mud and stuff.
Q. Did he tell you anything else about what he felt at the time that he was doing this? You said he felt like he pulled some ribs. Did he tell you how else it felt?
A. He said, I feel very nauseated and light-headed.
Q. Had he ever pulled ribs ...