Banda v. State ex rel. Wyoming Workers' Compensation Div.

• Decision Date: 28 March 1990
• Docket Number: No. 89-155,89-155
• Citation: 789 P.2d 124
• Parties: Tomas BANDA, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Defendant).
• Court: Wyoming Supreme Court

Page 124

789 P.2d 124

Tomas BANDA, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Defendant).

No. 89-155.

Supreme Court of Wyoming.

March 28, 1990.

Charles D. Phillips of Phillips & Phillips, Evanston, for appellant.

Joseph B. Meyer, Atty. Gen. and Ron Arnold, Senior Asst. Atty. Gen., for appellee.

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

URBIGKIT, Justice.

Sufficiency of the evidence to sustain the decision of the Worker's Compensation hearing examiner denying a permanent total disability claim provides the issue for this appeal. We affirm the denial of this successive claim filed to supplement an earlier partial permanent award granted for the same injury.

This court has recently defined the standard to be utilized in judicial review with the present structural change in the Wyoming Worker's Compensation adjudication process provided by creation of the hearing examiner system. It is first the burden of the claimant "to establish every essential element of his claim by a preponderance of the evidence." Hohnholt v. Basin Elec. Power Co-op, 784 P.2d 233, 235 (Wyo.1989). Then:

"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." (citation omitted) Trout v. Wyoming Oil & Gas Conservation Comm'n, 721 P.2d 1047, 1050 (Wyo.1986).

Id. at 234.

In procedural process, the additional factor here presented differing from Hohnholt is in that case, the administrative agency appeal was certified to this court by the district court without decision pursuant to W.R.A.P. 12.09 and here, the district court considered and denied the appeal. A second appeal is now taken. At this juncture for present worker's compensation review, we consider the record with the same standard, the Hohnholt rule, that was initially applied by the district court. Department of Revenue and Taxation of State of Wyoming v. Casper Legion Baseball Club, Inc., 767 P.2d 608 (Wyo.1989); Atchison v. Career Service Council of State of Wyoming, 664 P.2d 18, 20 (Wyo.), cert. denied 464 U.S. 982, 104 S.Ct. 424, 78 L.Ed.2d 359 (1983).

With the standard for assessing sufficiency of the evidence contended error established, we are invested with a factual review of the agency record to determine if substantial evidence exists to sustain the decision of the hearing examiner. Hohnholt, 784 P.2d 233; Mountain Fuel Supply Co. v. Public Service Com'n of Wyoming, 662 P.2d 878 (Wyo.1983).

In 1987, claimant Tomas Banda developed a compensable back injury, sustained during lifting, for which he received a permanent partial disability award of 20% physical impairment providing $12,625.38 in cash payments. About the time those payments were exhausted, Banda filed a March 1988 claim for a permanent total disability benefit to which both the employer and the state fund filed objections. The hearing examiner, who provided a comprehensive opportunity for the presentation of evidence in the contested proceeding, denied the claim and the district court, upon first appeal, affirmed. The 204 page trial transcript was addressed by Banda's eighty-four page brief in district court, and now on appeal, we are presented with another evidentiary recitation and evaluation of sixty-eight pages.

We conclude, in agreement with present appellee, Wyoming Workers' Compensation Division, which replaced the employer in leading the litigation, that...