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Worker's Compensation Claim of Rice v. State ex rel Wyoming Workers' Safety and Compensation Div.2/28/2001
W.R.A.P. 12.09(b) Certification from the District Court of Natrona County The Honorable W. Thomas Sullins, Judge
[ ] Appellant David Rice was denied worker's compensation benefits for a claim of injury resulting from chemical exposure, and he appeals. Following a hearing, the hearing examiner found that Rice neither timely filed an injury report nor proved by a preponderance of the evidence all elements of his claim. We hold that the finding that his injury report was not timely filed is clearly contrary to the weight of the evidence, but uphold the conclusion that Rice did not prove his injury by a preponderance of the evidence and affirm the order denying benefits.
ISSUES
[ ] Rice contends that the issues presented by this appeal are:
1. Whether Appellant's injury was not timely verbally reported.
2. Whether Appellant failed to timely file a written report of his injury.
3. Whether there is substantial evidence to support denial of Appellant's claim and especially the finding that Appellant's testimony in support thereof was not credible.
The Division restates the issues as:
I. Did the Hearing Examiner correctly find that Appellant failed to timely report his alleged injury?
II. Did the Hearing Examiner correctly find that Appellant failed to prove that his employer was not prejudiced by the untimely filing?
III. Did the Hearing Examiner correctly find that Appellant failed to establish every element of his claim by a preponderance of the evidence?
FACTS
[ ] Rice claimed that during ten-hour shifts, he used a chemical paint stripper called Bix Spray-On Stripper to remove paint from a large oil rig. The parties disputed the date that Rice used the stripper. He claimed that he used it on July 19 and 20, 1998, and his employer claimed that he used it for only one day on August 3, 1998. Rice's employer did not provide protective clothing or gloves, and Rice removed protective eyewear after it became coated with the stripper. No other eyewear was provided. The stripper was in contact with Rice's skin, eyes, and mouth. He inhaled the stripper and unknowingly ingested it after drinking from a nearby cup of soda. Rice began experiencing pain in his shoulder at work, appeared at a hospital emergency room, and received medical treatment for it on July 22, 1998. He timely reported the incident to his employer, Key Rocky Mountain, and the Division, claiming that he did not know how he had hurt his shoulder. The shoulder pain was diagnosed as a possible torn rotator cuff and treated with pain medication, a sling, and rest. The pain eased after a few days, and Rice returned to work.
[ ] Two weeks later, Rice experienced wrist pain and was again seen in the emergency room for debilitating pain. X-rays did not reveal any injury, and the pain was attributed to arthritis. Rice did not file a claim. Pain medication was prescribed, and the symptoms ceased after a few days. Several weeks later, which would be October of 1998, Rice experienced pain in his other wrist and began to suspect that the different episodes in different body parts might be related to chemical exposure. In total, Rice testified that he suffered a series of seventeen episodes of migratory pain; however, according to his testimony, as early as five weeks after the first incident of shoulder pain, he began to suspect the pain was caused by the chemical exposure. On his own, he obtained the material safety data sheet (MSDS) on Bix Spray-On Stripper to investigate the effects of acute and chronic exposure to it. He wrote letters to two different doctors, including his family doctor, Dr.
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