Bonsell v. State ex rel. Division, 05-273.

• Decision Date: 14 September 2006
• Docket Number: No. 05-273.,05-273.
• Citation: 2006 WY 114,142 P.3d 686
• Parties: In the Matter of the Worker's Compensation Claim of Kirk T. BONSELL, Appellant (Respondent/Appellee), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISON, Appellee (Petitioner/Appellant).
• Court: Wyoming Supreme Court

142 P.3d 686

2006 WY 114

In the Matter of the Worker's Compensation Claim of Kirk T. BONSELL, Appellant (Respondent/Appellee), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISON, Appellee (Petitioner/Appellant).

No. 05-273.

Supreme Court of Wyoming.

September 14, 2006.

Representing Appellant: Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee: Patrick J. Crank, Attorney General; John Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Before VOIGT, C.J., and GOLDEN, HILL^*, KITE, and BURKE, JJ.

KITE, Justice.

[¶ 1] Kirk Bonsell challenges the district court's reversal of the Office of Administrative Hearings' (OAH) order awarding him permanent partial disability (PPD) benefits. After reviewing the entire record, we conclude the hearing examiner's decision Mr. Bonsell had suffered a loss of earning capacity as a result of his work-related injury was supported by substantial evidence and in accordance with law. The district court improperly substituted its judgment when it reversed the OAH order awarding benefits. Consequently, we reverse and remand.

ISSUES

[¶ 2] Mr. Bonsell states a single issue on appeal:

Whether the decision of the Office of Administrative Hearings holding that claimant, Mr. Bonsell, was entitled to a permanent partial disability award, is supported by substantial evidence and is in accordance with Wyoming Statute § 27-14-405(h)(i)?

The Division poses the following issues:

Issue I. Whether the Office of Administrative Hearings' decision awarding permanent partial disability benefits to Bonsell lacks the support of substantial evidence and is arbitrary and capricious?

Issue II. Whether the Office of Administrative Hearings' decision awarding permanent partial disability benefits to Bonsell is contrary to law?

FACTS

[¶ 3] Mr. Bonsell injured his back while working as a manager of a paint store in Rock Springs. At the time of his injury, Mr Bonsell was earning a wage of $9.00 per hour. However, he routinely worked overtime, bringing his gross monthly wage up to $2,145.00. Mr. Bonsell's injury was deemed compensable and he received medical and temporary total disability benefits.

[¶ 4] Once Mr. Bonsell had recovered to the point of ascertainable loss, he underwent a functional capacity evaluation (FCE) and a physician assigned him a permanent partial impairment rating (PPI) of twelve percent (12%) of his whole body. Mr. Bonsell accepted a PPI award of that percentage and, thereafter, applied for PPD benefits to compensate him for loss of earning capacity.

[¶ 5] The Division arranged for Mr. Bonsell to be assessed by a vocational evaluator. The initial evaluation considered only employment in Texas because he had moved to that state after he was injured, but it was later amended with a labor market survey of Wyoming jobs. The Division denied Mr. Bonsell's request for PPD benefits because the vocational evaluation indicated he could "return to an occupation at a comparable wage." Mr. Bonsell objected to the Division's final determination and requested a hearing. Prior to the contested case hearing, he accepted a job which paid $9.00 per hour. His new job did not, however, offer any opportunities for overtime; consequently, his post-injury gross monthly earnings were approximately $1,562.40.

[¶ 6] The OAH held a contested case hearing on June 10, 2004, and issued an order awarding Mr. Bonsell PPD benefits. The Division filed a petition for review of the OAH decision with the district court. The district court reversed the OAH order, concluding "[t]he record does not contain substantial evidence which connects [Mr. Bonsell's] wage reduction to his injury." Mr. Bonsell appealed to this Court.

STANDARD OF REVIEW

[¶ 7] In reviewing an appeal from a district court's decision on a petition for review of an administrative action, we afford no deference to the district court's decision and, instead, review the case as if it came directly from the agency. Newman v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2002 WY 91, ¶ 7, 49 P.3d 163, 166 (Wyo.2002). Judicial review of agency decisions is limited to those considerations specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2005), which provides in pertinent part:

(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:

. . .

(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.

[¶ 8] In KG Construction, Inc. v. Sherman, 2005 WY 116, ¶ 9, 120 P.3d 145, 147-48 (Wyo.2005), we explained the standard for reviewing an agency's factual findings:

The substantial evidence test is the appropriate standard of review in appeals from contested case proceedings when factual findings are involved and both parties submit evidence. Robbins v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2003 WY 29, ¶ 18, 64 P.3d 729, 732 (Wyo.2003). 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. Even if the factual findings are found to be supported by substantial evidence, the ultimate agency decision may still be found to be arbitrary or capricious for other reasons. An appellate court does not examine the record only to determine if there is substantial evidence to support the agency's decision, but it also must examine the conflicting evidence to determine if the hearing examiner could have reasonably made its finding and order upon all of the evidence before it. Newman v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 91, ¶ 24, 49 P.3d 163, 172 (Wyo.2002).

See also, Diamond B Services, Inc. v. Rohde, 2005 WY 130, ¶ 11, 120 P.3d 1031, 1037-38 (Wyo.2005).

[¶ 9] We do not defer to the agency's determination on issues of law; instead, we will correct any error made by the agency in either interpreting or applying the law. Blommel v. State ex rel. Wyo. Dep't of Employment, Div. of Wyo. Workers' Safety and Comp., 2005 WY 128, ¶ 9, 120 P.3d 1013, 1015 (Wyo.2005). "The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act [is] a question of law over which our review authority is plenary." Id.

DISCUSSION

[¶ 10] Mr. Bonsell applied for PPD benefits under the Wyoming Worker's Compensation Act, Wyo. Stat. Ann. §§ 27-14-101, et. seq. (LexisNexis 2005). "Permanent partial disability" is defined as "the economic loss to an injured employee . . . resulting from a permanent physical impairment[.]" Section 27-14-102(a)(xv). See also, Phillips v. TIC-The Industrial Co. of Wyoming, Inc., 2005 WY 40, ¶ 29, 109 P.3d 520, 533 (Wyo.2005). In order to be eligible for PPD benefits, a claimant must demonstrate he has suffered a loss of earning capacity due to a work-related injury. McCarty v. Bear Creek Uranium Co., 694 P.2d 93, 94 (Wyo. 1985). An injured worker has the burden to prove each of the elements of his claim by a preponderance of the evidence. Abeyta v. State ex. rel. Wyo. Workers' Safety and Comp. Div., 2004 WY 50, ¶ 5, 88 P.3d 1072, 1075 (Wyo.2004).

[¶ 11] Section 27-14-405(h) incorporates the "loss of earnings" concept into the statutory requirements for PPD benefits:

(h) An injured employee awarded permanent partial impairment benefits may apply for a permanent disability award subject to the following terms and conditions:

(i) The injured employee is because of the injury, unable to return to employment at a wage that is at least ninety-five percent (95%) of the monthly gross earnings the employee was earning at the time of injury;

(ii) An application for permanent partial disability is filed not before three (3) months after the date of ascertainable loss or three (3) months before the last scheduled impairment payment, whichever occurs later, but in no event later than one (1) year following the later date; and

(iii) The employee has actively sought suitable work, considering the employee's health, education, training and experience.

The parties stipulated all of the requirements of § 27-14-405(h) had been satisfied except for the "comparable wage" requirement of subsection (i).

[¶ 12] "In determining whether an employee has suffered a loss of earning capacity both medical and non-medical evidence may be relevant." Chavez v. Memorial Hosp. of Sweetwater County, 2006 WY 82, ¶ 8, 138 P.3d 185, 189 (Wyo.2006). See also, McCarty, 694 P.2d at 94-95. Although no individual factor is determinative, the following considerations are relevant to the loss of earning capacity inquiry: the employee's physical impairment, including the nature and extent of his injury; age; education; actual earnings, including pre-injury and post-injury earnings; ability to continue pre-injury employment; and post-injury employment prospects. Chavez, ¶ 8, 138 P.3d at 189. See also, State ex rel. Wyo. Worker's Comp. Div. v. White, 837 P.2d 1095 (Wyo. 1992); Whiteman v. Workers' Safety and Comp. Div., 987 P.2d 670 (Wyo.1999). The fact finder has the discretion to assign weight to the individual factors. McCarty, 694 P.2d at 95; Chavez, ¶ 8, 138 P.3d at 189. "Wages earned by the employee [are] material to the question of the employee's earning capacity and [are] entitled to whatever weight the fact finder gives to it." McCarty, 694...