Bailey v. State, 01-248.

CourtUnited States State Supreme Court of Wyoming
Citation55 P.3d 23,2002 WY 145
Docket NumberNo. 01-248.,01-248.
PartiesDebra BAILEY, Appellant (Petitioner), v. STATE of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).
Decision Date30 September 2002

Robert Anderson of Robert O. Anderson, P.C., Riverton, WY, Representing Appellant.

Hoke MacMillan, Attorney General; Gerald L. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN,1 KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] This is an appeal from a determination of the State of Wyoming, Office of Administrative Hearings (OAH) denying neck and left knee related worker's compensation benefits. We affirm.


[¶ 2] Appellant, Debra Bailey (Bailey), sets forth the following issues:

Was the decision of the Administrative Hearings Office arbitrary, capricious, or otherwise unlawful within the meaning of W.S. § 16-3-114(c)(ii)(A) in ruling that Appellant was not eligible for a Temporary Total Disability award?
Was the Office of Administrative Hearings' decision unsupported by substantial evidence in light of the fact that substantial expert evidence existed to support a contrary ruling as required by W.S. § 16-3-114(c)(ii)(E)?

Appellee, State of Wyoming ex rel. Wyoming Worker's Compensation Division (Division), phrases the issue on appeal as:

Whether the Hearing Examiner erred in determining that Appellant failed to prove every element of her claim for benefits for her alleged neck and knee injuries.

[¶ 3] On July 18, 1999, Bailey leaped into the back end of a company pickup truck while working as a flagger/maintainer for S & L Industrial within a construction zone near Marbleton, Wyoming due to an oncoming vehicle.2 Immediately after this work accident, Bailey felt pain "all over" but most significantly in her right hand. Later that evening and into early the next morning, Bailey felt pain in her neck and experienced a headache. A few days after this incident, Bailey also began feeling pain in her left knee. Subsequently, Bailey received medical care for these injuries and was taken off work. Ultimately, Bailey was required to undergo surgery on the little finger on her right hand and her left knee. Bailey was also scheduled to have surgery on her neck, but this surgery did not then occur because Bailey declined at the last moment. Later, this surgical procedure was completed.

[¶ 4] Prior to the work accident, Bailey had injured her left knee in 1992 requiring surgery. Hardware, which was placed in her knee during this surgery, was never subsequently removed contrary to medical advice. In addition, eighteen years earlier, Bailey injured her neck in Tampa, Florida when the car in which she was riding was rear-ended by another vehicle. Bailey experienced episodic neck pain from 1995 through 1999. In 1995, Bailey had an MRI performed on her neck. Finally, Bailey was involved in another automobile accident in May of 1999. Bailey's employer was notified prior to her employment that she had pre-existing back and neck problems and had been recently involved in an automobile accident.

[¶ 5] After hearing, the OAH found that Bailey's little finger injury was a compensable injury. However, the OAH determined that Bailey's neck and left knee injuries were not compensable and denied coverage for those two claims. Bailey sought review of this decision in the district court, which affirmed the decision of the OAH. This appeal followed.


[¶ 6] Our standard of review when reviewing administrative agency action was recently clarified in the case of Newman v. State ex rel. Workers' Safety and Compensation Div., 2002 WY 91, 49 P.3d 163 (Wyo. 2002). In that case, we reiterated that when considering an appeal from a district court's review of agency action, we accord no special deference to the district court's conclusions and review the case as if it had come directly before this court from the administrative agency. Newman, at ¶ 7 (citing French v. Amax Coal West, 960 P.2d 1023, 1027 (Wyo.1998)). We further recognized the applicability of Wyo. Stat. Ann. § 16-3-114(c) which provides:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Newman, at ¶ 9. In addition, we held that this court is required to review the entire record in making its ultimate determination on appeal.3 Newman, at ¶ 19 and ¶¶24-26.

[¶ 7] Moreover, this court provided clarification in Newman of the applicable standard of review for the benefit of litigants, counsel, and district courts. After thorough consideration, this court adopted the reasoning utilized in Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth. 436, 550 A.2d 1364, 1365 (1988), in instances where both parties submit evidence at the hearing below. Specifically, this court stated:

On this reasoning, we hold the substantial evidence test is the appropriate standard of review in appeals from WAPA contested case proceedings when factual findings are involved and both parties submit evidence. We further hold, when only the party with the burden of proof submits evidence in the contested case proceeding and that party does not ultimately prevail, the arbitrary or capricious standard governs the judicial review of that agency decision.

Newman, at ¶ 22. This standard must be applied regardless of which party appeals from the agency decision.

[¶ 8] Additionally, we indicated in Newman, at ¶ 12 (quoting State ex rel. Workers' Safety and Compensation Div. v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, ¶ 10 (Wyo. 2001)), that the substantial evidence test to be applied is as follows:

In reviewing findings of fact, we examine the entire record to determine whether 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 agency's conclusions. It is more than a scintilla of evidence.

[¶ 9] In State ex rel. Workers' Safety and Compensation Div. v. Garl, 2001 WY 59, ¶ 9, 26 P.3d 1029, ¶ 9 (Wyo.2001), we further recognized that:

The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are questions of law over which our review authority is plenary. Collicott [v. State ex rel. Workers' Safety and Compensation Div., 2001 WY 35], ¶ 4 [20 P.3d 1077, ¶ 4 (Wyo.2001)]. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Id. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. Id.

[¶ 10] The de novo review by this court of the application of law made by the administrative agency is not to be confused with the arbitrary-and-capricious standard of review also enumerated in Newman. Newman contemplates that even when the factual findings are found to be sufficient under the substantial evidence test, this court may be required to apply the arbitrary-and-capricious standard as a "safety net" to catch other agency action which prejudiced a party's substantial right to the administrative proceeding or which might be contrary to the other WAPA review standards. A purely demonstrative listing is provided of situations which could warrant the consideration of the arbitrary-and-capricious standard in addition to the substantial evidence test.4 Newman, at ¶ 23. However, this appeal presents no such unique circumstances. In accord, see Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).


[¶ 11] Bailey argues that the decision of the OAH is not supported by substantial evidence and that the OAH erred as a matter of law in rendering its determination. Specifically, Bailey asserts that given the testimony of Dr. Hume and evidence that prior to the work accident she was able to perform her work responsibilities, substantial evidence exists to support a ruling that Bailey's knee and neck injuries were compensable under the Wyoming workers' compensation system. Bailey contends that she submitted adequate evidence to meet her burden of proof that the work accident materially aggravated her admitted pre-existing conditions to her knee and neck and that she should have been awarded worker's compensation benefits concerning these injuries.

[¶ 12] In making our review, we apply the substantial evidence test as required by our recent opinion in Newman detailed above. This review criteria is applicable in this case because the OAH was required to make factual findings in this instance and both Bailey and the Division submitted evidence at the time of the administrative hearing held before the OAH.

[¶ 13] Review of the entire record discloses that Bailey was injured on July 18, 1999 while...

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