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KG Construction9/15/2005
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.
[ ] Dale Sherman worked as a truck driver for KG Construction, Inc. (KG) for over 20 years. In 2002, he began to suffer cervical problems and ultimately underwent surgery. The Workers' Compensation Division (Division) determined his injury was compensable and awarded him benefits. KG objected and a hearing was held by the Office of Administrative Hearings (OAH) which found Mr. Sherman was entitled to temporary total disability benefits because he had suffered a compensable work-related injury over a substantial period of time. KG appealed that decision and the district court affirmed. Finding OAH's decision was supported by substantial evidence, we affirm.
ISSUES
[ ] KG presents the following two issues:
1. Is there substantial evidence to support the Hearing Examiner's decision that the claimant had met his burden of proof for temporary total disability compensation?
2. Did the earing Examiner abuse his discretion by ruling on an apportionment issue when Wyoming Worker's Compensation Division Rules and Regulations specify that he did not have the authority to do so?
Mr. Sherman states the issues as follows:
1. Does W.S. ยง 27-14-603 require that employment be the sole cause of the injury?
2. Can appellant expand appeal beyond issues raised in original petition for judicial review, and, in any event, is there any merit to additional issues raised?
3. Was there substantial evidence to support the decision of the Office of Administrative Hearings?
FACTS
[ ] Mr. Sherman began working for KG in 1979. During his employment with KG he worked as a truck driver hauling heavy equipment, hay and oilfield tanks. His job also included loading baled hay onto semi trailers, off loading oilfield casing by hand, pulling rear ends out of trucks, pulling transmissions out of trucks, taking tires and wheels off, and working with tire chains weighing 50-60 pounds, that, if muddied, could weigh up to 150 pounds. Heavy lifting and heavy manual work were "part and parcel" of Mr. Sherman's job at KG. In addition to the regular work demands, Mr. Sherman testified he had sustained various traumatic injuries while employed by KG which could have contributed to his back problems.
[ ] Prior to working for KG, Mr. Sherman's jobs included ranch hand, general road construction, military service, and truck driver. Mr. Sherman estimated that he spent about ten years working as a truck driver before he went to work for KG. In the mid'80s, Mr. Sherman began having pain in the base of his neck while loading hay bales and driving his truck. He described the pain as a burning sensation which would last all day. After a hot shower and a night's sleep, the pain would be gone. However, as the day went on, the pain, which felt like a "hot knife," would return and become more severe.
[ ] In February of 2002, as Mr. Sherman was driving his truck to Newcastle, Wyoming, to pick up a load of rock, he felt a pain in the back of his neck that spread into his left shoulder and down his arm. In addition to the pain, Mr. Sherman's fingers felt "numb and tingly." He stopped at a rest stop and the pain went away after he walked around. He continued driving toward Newcastle and the pain returned. It was so severe that Mr. Sherman became ill and thought he was having a heart attack. He was taken by ambulance to the hospital in Newcastle, but, after a series of tests, doctors told Mr. Sherman his heart was fine.
[ ] The following week, as Mr. Sherman was driving his truck as usual, the pain returned. He immediately soug
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