In re Worker's Compensation Claim of Bollinger, 090319 WYSC, S-19-0004

Docket Nº:S-19-0004
Opinion Judge:GRAY, JUSTICE.
Party Name:IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: KENNETH J. BOLLINGER, Appellant (Petitioner), v. STATE OF WYOMING, ex rel. DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
Attorney:Representing Appellant: Stacy M. Kirven, Kirven Law, LLC, Sheridan, Wyoming. Representing Appellee: Bridget Hill, Wyoming Attorney General; Michael J. McGrady, Deputy Attorney General; Kelly D. Mullen, Assistant Attorney General.
Judge Panel:Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Case Date:September 03, 2019
Court:Supreme Court of Wyoming
 
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2019 WY 88

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: KENNETH J. BOLLINGER, Appellant (Petitioner),

v.

STATE OF WYOMING, ex rel. DEPARTMENT OF WORKFORCE SERVICES, WORKERS' COMPENSATION DIVISION, Appellee (Respondent).

No. S-19-0004

Supreme Court of Wyoming

September 3, 2019

Appeal from the District Court of Crook County The Honorable John R. Perry, Judge

Representing Appellant: Stacy M. Kirven, Kirven Law, LLC, Sheridan, Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Michael J. McGrady, Deputy Attorney General; Kelly D. Mullen, Assistant Attorney General.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

GRAY, JUSTICE.

[¶1] The Office of Administrative Hearings (OAH) denied Kenneth J. Bollinger's request for permanent partial disability benefits. The hearing examiner determined Mr. Bollinger had not established "that because of his injury he is unable to return to employment at a wage of at least 95% of his monthly earnings at the time of his injury." Mr. Bollinger claims the hearing examiner's decision is not supported by the evidence, and the hearing examiner failed to consider undisputed evidence in favor of Mr. Bollinger's position. Specifically, Mr. Bollinger claims the hearing examiner's decision failed to recognize that after a diligent job search, he remained unemployed. We affirm.

ISSUES

1. Was the OAH decision to deny Mr. Bollinger permanent partial disability benefits supported by substantial evidence?

2. Was the OAH decision to deny Mr. Bollinger permanent partial disability benefits arbitrary, capricious, or otherwise not in accordance with the law?

FACTS

A. Procedural Background

[¶2] On February 19, 2016, Mr. Bollinger, a boiler/kiln operator, injured his left arm while working at a lumber mill in Hulett, Wyoming. At the time of his injury, he earned $16.50 per hour.

[¶3] Mr. Bollinger filed a timely claim with the Workers' Compensation Division (the Division) and received temporary benefits on February 26, 2016.1 On March 17, 2017, the Division issued a determination letter awarding payments for a permanent partial impairment. Mr. Bollinger then applied for permanent partial disability payments. On July 10, 2017, the Division denied his claim because he had not submitted the required number of contacts to be deemed actively seeking work.2 Mr. Bollinger supplemented his application for benefits by listing thirteen additional documented work contacts. On July 20, 2017, the Division again denied his claim because his information indicated he could "return to an occupation at a comparable wage" and therefore did not qualify for permanent partial disability benefits.

[¶4] Mr. Bollinger objected to the Division's conclusion, and his claim was referred to the OAH for an evidentiary hearing. The hearing was held on March 20, 2018. Twenty-one days later, the hearing examiner issued the Findings of Fact, Conclusions of Law and Order. The order denied benefits because Mr. Bollinger had "not met his burden of proof to establish that because of his injury he is unable to return to employment at a wage of at least 95% of his monthly earnings at the time of his injury." Mr. Bollinger petitioned for judicial review of the hearing examiner's decision. The district court found the hearing examiner's decision was supported by substantial evidence and affirmed. Mr. Bollinger filed this timely appeal.

B. The Hearing Examiner's Findings of Fact, Conclusions of Law and Order

[¶5] The hearing examiner's order contained the following findings of fact: Mr. Bollinger is 63 years old and resides in Moorcroft, Wyoming. He has a bachelor of science in aerospace engineering and worked for NASA for approximately 20 years. While at NASA, he was a financial information processing assistant; an IT department manager; a web services manager; and he worked on numerous projects including the Voyager, Cassini, and Magellan expeditions. In 2000, Mr. Bollinger moved to Wyoming where he has lived ever since. He has worked in numerous occupations in Wyoming, including as a compliance officer, privacy officer, grant project analyst, and technical sales executive. Mr. Bollinger also designed and operated an alternative energy company.

[¶6] After the injury to his left arm, Mr. Bollinger participated in a permanent impairment evaluation where it was determined his injury resulted in an 11% upper extremity impairment which equaled a 7% whole person impairment. He is able to lift 20 pounds with his right hand but only five pounds with his left.3 Given his physical limitations, a Functional Capacity Evaluation concluded Mr. Bollinger was able to perform in a...

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