Aanenson v. State ex rel. Wyoming Worker's Compensation Div.

• Citation: 842 P.2d 1077
• Decision Date: 08 December 1992
• Docket Number: No. 92-81,92-81
• Parties: Carson R. AANENSON, Appellant (Petitioner Employee-Claimant), v. STATE of Wyoming ex rel., WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Respondent Objector).
• Court: United States State Supreme Court of Wyoming

Page 1077

842 P.2d 1077

Carson R. AANENSON, Appellant (Petitioner Employee-Claimant), v. STATE of Wyoming ex rel., WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Respondent Objector).

No. 92-81.

Supreme Court of Wyoming.

Dec. 8, 1992.

Michael Schilling, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen., and J.C. DeMers, Sr. Asst. Atty. Gen., for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT and GOLDEN, JJ.

CARDINE, Justice.

Carson R. Aanenson seeks review of a district court order affirming the denial of worker's compensation benefits by a hearing officer. Mr. Aanenson was diagnosed with a ruptured disc in 1986 but neglected to file a report or claim for worker's compensation. In 1990, Aanenson filed an injury report and then a claim for coverage for an operation on the same ruptured disc. The benefits were denied because appellant missed the statutory deadline provided in W.S. 27-12-503 (1977).

We affirm.

Mr. Aanenson presents the following issue:

I. Whether appellant's claims for a ruptured dis[c] injury are timely filed within one year from the date of the treating physician's determination that the condition requires surgical correction.

The State presents it this way:

I. Does substantial evidence exist to support the hearing examiner's finding that the statute of limitations began to run in May of 1986 and that the appellant's claim was barred pursuant to W.S. § 27-14-503.

FACTS

Mr. Aanenson was first employed by Roger and Jean Schlump, the sole proprietors of Ace Salvage, in 1985. The Schlumps hired him to manage and operate their salvage yard, which required strenuous lifting. Throughout the first two to three years, Mr. Aanenson was sporadically paid small sums, despite working 300- While moving a number of car transmissions and car rear ends in the spring of 1986, Aanenson gradually developed severe pain in his left leg and buttocks. In early May, the pain became intolerable, forcing a visit to the emergency room. Based upon the hospital's examination and advice from his employer, Mr. Aanenson scheduled an appointment with Dr. Kieffer.

400 hour months. However, in 1988, the Schlumps incorporated Ace Salvage, made Aanenson vice president, and issued him shares in the corporation.

Dr. Kieffer examined Mr. Aanenson and ordered a CAT scan of Mr. Aanenson's lower back. Based upon the exam and CAT scan, Dr. Kieffer explained to Mr. Aanenson that he had ruptured a disc, pinched a nerve, and that he had a floating cracked vertebra. Mr. Aanenson did not file a worker's compensation claim or accident report. Mr. Aanenson and Dr. Kieffer agreed upon a conservative treatment approach, including bed rest, medication, stretching exercises, and time off from work. After about two months, Mr. Aanenson returned to work and gradually was able to perform his same duties.

Over the next three years, Mr. Aanenson continued to diligently perform his duties at the salvage yard and was able to endure whatever pain existed. In 1990, however, the salvage company began a new project which required more strenuous lifting and moving than had previously been needed. The severe pain returned. Mr. Aanenson consulted a second physician, Dr. Wirt. Dr. Wirt diagnosed a ruptured disc at L5-S1 and confirmed that it was the same disc injury as in 1986. Dr. Wirt recommended surgery.

On December 3, 1990, Mr. Aanenson filed a worker's compensation employee injury report, and an employer's report was also completed. Dr. Wirt and Mr. Aanenson set a date for surgery, and Dr. Wirt sent in a claim for worker's compensation coverage. The Division of Worker's Compensation denied coverage of the surgery because they viewed the 1990 injury as pre-dating to 1986, and thus the time for filing the 1986 claim had passed. Mr. Aanenson then requested a hearing before the hearing officer, who also denied his claims. Aanenson appealed the decision to the district court, who then affirmed the hearing officer's denial. Mr. Aanenson now asks us to review the district court order.

STANDARD OF REVIEW

The standard to which we must adhere in reviewing agency factual findings is as follows:

"We examine the entire record to determine if there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency, and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the conclusions of the agency. It is more than a scintilla of evidence."

State ex rel. Wyoming Worker's Compensation Div. v. White, 837 P.2d 1095 (Wyo.1992), quoting Hohnholt v. Basin Electric Power Co-op, 784 P.2d 233, 234 (Wyo.1989); see also Trout v. Wyoming Oil & Gas Conservation Comm'n, 721 P.2d 1047, 1050 (Wyo.1986). Agency conclusions of law, however, are not afforded the same deference. Thus, our standard of review for agency conclusions of law is as follows:

If the conclusion of law is in accordance with law, it is affirmed, [Department of Revenue and Taxation of State of Wyoming v.] Casper Legion Baseball Club, Inc., 766 P.2d 608 [Wyo.1989]; if it is not, it is to be corrected. Rocky Mountain Oil & Gas Ass'n [v. State Board of Equalization], 749 P.2d 221 [Wyo.1987].

Employment Security Comm'n v. Western Gas Processors, Ltd., 786 P.2d 866, 871, 86 A.L.R.4th 295 (Wyo.1990).

When we review mixed questions of law and fact, our standard has been stated this way:

When an agency's determinations contain elements of law and fact, we will not treat them as findings of fact. We extend Union Pacific R.R. Co. v. State Bd. of Equalization, 802 P.2d 856, 860-61 (Wyo.1990).

                deference only to agency findings of "basic fact."   When reviewing a finding of "ultimate fact," we divide the factual and legal aspects of the finding to determine whether the correct rule of law has been properly applied to the facts.  If the correct rule of law has not been properly applied, we do not defer to the agency's finding but correct the agency's error in either stating or applying the law
                

Before choosing the appropriate standard of review, we must determine whether we are being asked to review a finding of fact, a conclusion of law, or a mixed question of fact and law. Distinguishing between fact and law is a sometimes difficult, if not impossible, task because "[m]atters of law grow downward into roots of fact, and matters of fact reach upward, without a break, into matters of law." Ray A. Brown, Fact and Law in Judicial Review, 56 Harv.L.Rev. 899, 904 (1943), quoting Dickinson, Administrative Justice and the Supremacy of the Law 55 (1927).

In discussing distinctions between issues of fact and issues of law in the area of the worker's compensation statute of limitations, we said, in Claim of Grindle, 722 P.2d 166, 169 (Wyo.1986):

"It is the duty of the trial judge as finder of fact to determine and find by a preponderance of the evidence whether there was a compensable injury, and, if so, when it was actually suffered by an employee...." In the Matter of Barnes, Wyo., 587 P.2d 214 (1978); and Big Horn Coal Company v. Wartensleben, Wyo., 502 P.2d 187 (1972).

In Claim of Nielsen, 806 P.2d 297, 299 (Wyo.1991), we commented further:

While it is true a claimant has the burden of proving the actual time of disability and its cause, for purposes of establishing the date of occurrence of an injury to ascertain the time from which the statute of limitations begins to run is a legal question and not one of fact. [citations omitted]

From these excerpts, it appears that our issue is a mixed question of law and fact.

A "mixed question of law and fact" is a conclusion reached or a finding made by an agency through application of legal precepts to the historical and narrative events of a particular case. Union Pacific R.R. Co., 802 P.2d at 860. Professor Davis explained the concept using the most common of issues: Was the defendant negligent? He divided the issue into two questions: (1) What did the defendant do? (an issue of historical fact), and (2) Do defendant's actions constitute negligence? (an issue of law). 5 Davis, Administrative Law Treatise § 29:9 at 367 (2d ed. 1984).

The historical actions and inactions of Mr. Aanenson, as determined by the hearing officer, are historical or basic facts. However, whether or not W.S. 27-12-503 acts as a bar to Mr. Aanenson's claim when applied to the basic facts is an issue of law. Therefore, the findings made by the hearing officer concerning appellant's historical actions are given due deference, but the conclusion that W.S. 27-12-503 bars appellant's claim will be affirmed only if it is in accordance with law.

ANALYSIS

Findings of Fact

The hearing officer expressed his findings of basic fact as follows:

This office is persuaded that Employee-Claimant [appellant] ruptured his L5-S1 disk in 1986. This medical condition was diagnosed in 1986, and the diagnosis was communicated to Employee-Claimant. Employee-Claimant has no doubts as to the fact that this diagnosed condition was caused by his Ace employment. Although able to delay surgical treatment through the date of this hearing, Employee-Claimant nevertheless was totally disabled for two (2) months in 1986, and since then has had intermittent periods where his medical condition prevented his engaging in unrestricted work effort with Ace. Despite this, Employee-Claimant did not file any worker's compensation accident report until approximately December 5, 1990, and did not file any worker's compensation claim until December 17, 1990.

Each of these findings made by the hearing officer is supported by Mr. Aanenson's testimony and the record. Mr. Aanenson testified that he was informed of the ruptured disk by Dr. Kieffer in 1986; that he believed the injury happened at Ace Salvage; that he was able to postpone surgery; that he was unable to work for two months after the injury in 1986; that he...