Hermosillo v. STATE EX REL. WORKERS'SAFETY & COMP. DIV.

• Decision Date: 06 December 2002
• Docket Number: No. 01-251.,01-251.
• Parties: Javier HERMOSILLO, Appellant (Petitioner), v. STATE of Wyoming ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

58 P.3d 924

2002 WY 175

Javier HERMOSILLO, Appellant (Petitioner), v. STATE of Wyoming ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. 01-251.

Supreme Court of Wyoming.

December 6, 2002.

Donald L. Painter, Casper, Wyoming, Representing Appellant.

Hoke MacMillan, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; David L. Delicath, Assistant Attorney General, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN¹, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] Appellant Javier Hermosillo was denied permanent partial disability benefits after a hearing examiner found that Hermosillo had failed to prove that he could not return to work at a comparable wage, and had actively sought work as required by Wyo. Stat. Ann. § 27-14-405(h). He appeals, contending that substantial evidence does not support these findings. Our review of the record indicates otherwise, and we affirm.

ISSUES

[¶ 2] Hermosillo presents this statement of the issues for our review:

1. Whether Appellant failed to satisfy the job search requirements in Wyo. Stat. § 27-14-405(h)(iii).

2. Whether Appellant was earning $8.00 per hour or $9.00 per hour at the time of injury.

The State phrases the issues as follows:

I. Whether the Hearing Examiner erred in finding that Appellant failed to prove that he was, because of his compensable injury, unable to return to employment at a wage comparable to or higher than the wage he was earning at the time of his injury.

II. Whether the Hearing Examiner erred in finding that Appellant failed to prove that he had actively sought suitable work, considering his health, education, training and experience.

FACTS

[¶ 3] Hermosillo sustained a compensable back injury in 1997. The Division of Workers' Compensation (Division) paid benefits, including benefits for three surgeries, and assigned a permanent partial impairment rating of 15%. On August 5, 2000, Hermasillo applied for permanent disability benefits as permitted by Wyo. Stat. Ann. § 27-14-405. Under the statute, Hermosillo would receive the award if he could prove the injury prevented him from returning to employment at a comparable or higher wage than that being earned at the time of injury, and he had actively sought suitable work, considering his health, education, training and experience.

[¶ 4] Hermosillo underwent a vocational evaluation. Using $8.00 per hour as the wage he was earning at the time of injury, the evaluator concluded that Hermosillo could return to work at a comparable or higher wage. The Division denied the award application, and a contested case hearing was held. Hermosillo testified that he was paid an additional $1.00 per hour for opening the business and was, therefore, earning $9.00 per hour at the time of injury, and at this higher rate, the Division had erred in finding work available at a comparable rate.

[¶ 5] Although Hermosillo's physician placed restrictions and limitations on lifting, Hermosillo was released to work, and applied for positions in 1999 and March of 2000. The hearing examiner found that Hermosillo did not seek employment after receiving a functional capacity assessment in September of 2000, or after being released for work by his physician. The hearing examiner found that Hermosillo had relied on the Department of Vocational Rehabilitation to find employment and did not take any other steps to find employment. Based on these findings, the hearing examiner concluded that Hermosillo had failed to prove that he actively sought employment and upheld the Division's denial of benefits. The decision was affirmed by the district court. This appeal followed.

DISCUSSION

Standard of Review

[¶ 6] A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. In Re Worker's Comp. Claim of Johnson, 2001 WY 48, ¶ 7, 23 P.3d 32, ¶ 7 (Wyo.2001). We recently held that the substantial evidence test is the appropriate standard of review in appeals from Wyoming Administrative Procedures Act contested case proceedings when factual findings are involved and both parties submit evidence. Newman v. Wyoming Workers' Safety and Comp. Div., 2002 WY 91, ¶ 22, 49 P.3d 163, ¶ 22 (Wyo.2002). We further held that 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. Id. Even if the factual findings are found to be supported by substantial evidence, the ultimate agency decision may be found to be arbitrary or capricious for other reasons. Id. at ¶ 23. We do not examine the record only to determine if there is substantial evidence to support the board's decision, but we must also 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. Id. at ¶ 24, ¶ 25. Because both parties presented cases-in-chief, we apply the substantial evidence standard. We afford respect and deference to a hearing examiner's findings of fact if they are supported by substantial evidence. Haagensen v. State ex rel. Workers' Comp. Div., 949 P.2d 865, 867 (Wyo.1997). Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. State ex rel. Wyo. Workers' Comp. Div. v. Waggener, 946 P.2d 808, 814 (Wyo. 1997). We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Id. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Id. A hearing examiner's conclusions of law are afforded no special deference and will be affirmed only if truly in accord with law. State ex rel. Wyo. Workers' Comp. Div. v. Barker, 978 P.2d 1156, 1159 (Wyo.1999).

Statutory Eligibility

[¶ 7] In his first challenge, Hermosillo disputes the hearing examiner's finding that his hourly rate at the time of injury was $8.00 per hour and contends that no work is available at a comparable wage. When Hermosillo was injured in 1997, his injury report stated his hourly income as $8.00 per hour, and during the hearing he testified that it was $9.00 per hour. His permanent disability award...