Bollinger v. State ex rel. Dep't of Workforce Servs, Worker's Comp. Div.

• Decision Date: 03 September 2019
• Docket Number: S-19-0004
• Citation: 448 P.3d 200
• Parties: 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).
• Court: Wyoming Supreme Court

448 P.3d 200

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).

S-19-0004

Supreme Court of Wyoming.

September 3, 2019

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 medium capacity. His treating physician advised him he was able to return to some type of non-manual labor but could not return to his former job.

[¶7] Mr. Bollinger submitted applications to more than 50 qualifying jobs between April 18, 2017, and June 19, 2017. The jobs included: data science analyst, maintenance technician in electronics, operations manager, operations manager for aerospace components, certified medical coder, store manager, test and balance technician, senior computer technology business application analyst, engineering position, communications security, account executive, city administrator, and wind farm maintenance technician.

[¶8] Mr. Bollinger did not receive a response to any of his applications even though he testified he was mentally and physically qualified to perform all of the jobs listed in his job search. Although some of the positions paid less than $16 per hour, the "vast majority paid in excess of what he was earning at the time of his injury."

[¶9] Based on these facts, the hearing examiner determined Mr. Bollinger had not established that "because of his injury he [was] unable to return to employment at a wage of at least 95% of his monthly earnings at the time of his injury."

DISCUSSION

A. Standard of Review

[¶10] "When we consider an appeal from a district court’s review of an administrative agency’s decision, we give no special deference to the district court’s decision." Dale v. S & S Builders, LLC , 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008). "Instead, we review the case as if it had come directly to us from the administrative agency." Id. (quoting Newman v. State ex rel. Wyo. Workers’ Safety & Comp. Div. , 2002 WY 91, ¶ 7, 49 P.3d 163, 166 (Wyo. 2002) ).

[¶11] Judicial review of agency decisions is governed by the Wyoming Administrative Procedure Act, Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2019), which provides in relevant part:

(c) ... 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;

...

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶12] "[T]he substantial evidence standard will be applied any time we review an evidentiary ruling." Dale , ¶ 22, 188 P.3d at 561. In Baldwin , we noted:

If the hearing examiner determines that the burdened [claimant] failed to meet his burden of proof, we will decide whether there is substantial evidence to support the agency’s decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole.

In re Baldwin , 2008 WY 125, ¶ 8, 196 P.3d 1087, 1090 (Wyo. 2008) (citation omitted). "[O]ur review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did." Id. (citation omitted).

[¶13] "Even if an agency record contains sufficient evidence to support the administrative decision under the substantial evidence test, this Court applies the arbitrary-and-capricious standard as a ‘safety net’ to catch other agency action that may have violated the Wyoming Administrative Procedures Act." Worker’s Comp. Claim of Rodgers v. State ex rel. Wyo. Workers’ Safety & Comp. Div. , 2006 WY 65, ¶ 19, 135 P.3d 568, 575 (Wyo. 2006) (quoting Worker’s Comp. Claim of Decker v. State ex rel. Wyo. Med. Comm’n , 2005 WY 160, ¶ 24, 124 P.3d 686, 694 (Wyo. 2005) ). "Under the umbrella of arbitrary and capricious actions would fall potential mistakes such as inconsistent or incomplete findings of fact or any violation of due process." Rodgers , ¶ 19, 135 P.3d at 575 (quoting Decker , ¶ 24, 124 P.3d at 694 ).

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

[¶14] It is undisputed Mr. Bollinger’s claim was timely, and he actively sought work in compliance with the Division’s rules. The only issue at the hearing was whether he demonstrated that, because of his injury, he was unable to return to employment at 95% of his former monthly gross earnings. Wyo. Stat. Ann. § 27-14-405(h).

[¶15] Mr. Bollinger contends the evidence presented at the hearing demonstrated he met all of the statutory requirements. Despite his efforts, he did not receive any responses from potential employers, let alone find employment. He argues that, had he not been injured, he would still be working. Because of his injury, he remains unemployed with no job prospects. Therefore, he claims the hearing examiner erred in placing greater weight on his impressive resume, which indicated he theoretically should be able to find employment at a salary at 95% of his pre-injury wage. Instead, Mr. Bollinger argues that the hearing examiner should have found dispositive the undisputed fact showing Mr. Bollinger applied for over 50 positions and still had no job at any wage.

[¶16] "[A] worker suffers a loss of earning capacity when, because of his injury, he is deprived of his ability to rely upon prior work experience." Bonsell v. State ex rel. Wyo. Workers’ Safety & Comp. Div. , 2006 WY 114, ¶ 18, 142 P.3d 686, 691 (Wyo. 2006). "[T]he focus of § 27-14-405(h) is on the injured employee’s true...