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In re Worker's Compensation Claim of Rogers

Supreme Court of Wyoming

August 16, 2016

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: WILLIAM H. ROGERS, Appellant (Petitioner/Claimant),
v.
RUSSELL CONSTRUCTION COMPANY, INC., Appellee (Respondent/Employer).

         Appeal from the District Court of Converse County The Honorable John C. Brooks, Judge.

          Representing Appellant Jeremy J. Hugus, Platte River Law Firm, Casper, Wyoming

          Representing Appellee Denny Harts, Attorney at Law, Douglas, Wyoming

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          DAVIS, Justice.

         [¶1] William Rogers appeals from a district court order affirming the Office of Administrative Hearing's (OAH) denial of his claim for worker's compensation benefits. We affirm.

         ISSUES

         [¶2] Rogers raises two issues relating to the OAH decision. We restate them as follows:

1. Was the hearing examiner's determination that Rogers failed to prove a compensable workplace injury supported by substantial evidence, and if so, was it nonetheless arbitrary and capricious?
2. Was the hearing examiner's determination that Rogers failed to prove that the late filing of his report of injury did not prejudice his employer or the Workers' Compensation Division (Division) supported by substantial evidence, and if so, was it nonetheless arbitrary and capricious?

         Because of our resolution of the first issue, we need not reach the second.[1]

         FACTS

         [¶3] On November 19, 2013, Rogers was working at the Dave Johnson Power Plant near Glenrock for Russell Construction Company (Russell), along with his supervisor Blake Palmer and another worker, George Emery.[2] The three men were pouring and finishing concrete in a footer form that was sixteen inches wide and eight to twelve inches deep, with vertical rebar dowels sticking up in its center. The form was in a trench that was two and a half to three feet deep. Palmer was guiding the chute of the concrete mixer truck while Rogers and Emery worked to level and finish the poured concrete. Approximately fifteen feet from a ninety degree turn in the form, and just past a point where several pipes or conduits crossed the trench, the chute momentarily caught on a piece of wire attached to the rebar and then popped up with some force.

         [¶4] Rogers claimed that when it sprang up, the chute came close to his head, startled him, and caused him to step back. He testified that when he did so, he tripped and fell backward against a ledge of old concrete protruding from the side of the trench. He also claimed that Palmer was facing him, and he was so close he must have seen the fall, and that Palmer in fact asked him if he was all right after he stood up.

         [¶5] However, Palmer and Emery testified that Rogers was farther away from the chute, at the corner of the trench, and separated from it by conduit. Both testified that they did not see Rogers fall, despite their proximity to where Rogers claimed to have been injured. Furthermore, they testified that he did not mention that he had fallen during the pour. Rogers continued to work that day and afterward, and he did not seek medical attention for nearly a month.

         [¶6] On December 18, 2013, he spent most of the day knocking down a portion of a cement block wall with a hammer drill.[3] He felt unusually stiff and sore at the end of the day, and he therefore visited the emergency room at the Memorial Hospital of Converse County.

         [¶7] A report concerning diagnostic x-rays of Rogers' spine taken during that visit revealed that he had undergone some kind of previous lumbar spine study at that facility in early 2009.[4] A radiologist who reviewed the films found no fractures, but he did observe partial sacralization of the fifth lumbar and first sacral vertebrae. The report reflected an essentially fused disc space at that level, as well as minimal spondylolisthesis at the fourth and fifth lumbar vertebrae, which reduced the disc space somewhat.[5] The report noted no instability on flexion and ...


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