In re Pickens

• Decision Date: 04 May 2006
• Docket Number: No. 05-162.,05-162.
• Citation: 134 P.3d 1231,2006 WY 54
• Parties: In the Matter of the Worker's Compensation Claim of Bobby Joe PICKENS. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellant (Respondent), v. Bobby Joe Pickens, Appellee (Petitioner).
• Court: Wyoming Supreme Court

134 P.3d 1231

2006 WY 54

In the Matter of the Worker's Compensation Claim of Bobby Joe PICKENS State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellant (Respondent), v. Bobby Joe Pickens, Appellee (Petitioner).

No. 05-162.

Supreme Court of Wyoming.

May 4, 2006.

COPYRIGHT MATERIAL OMITTED

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

Representing Appellee: Edward G. Luhm of Scott, Shelledy and Luhm, P.C., Worland, Wyoming.

Before HILL, C.J., and GOLDEN, VOIGT, and BURKE, JJ., and PERRY, D.J.

VOIGT, Justice.

[¶ 1] Bobby Joe Pickens (the claimant) sought permanent total disability benefits under the "odd lot" doctrine. The Workers' Compensation Division (the Division) denied benefits and, after a contested case hearing, the Medical Commission (the Commission) agreed with the Division. On appeal, the district court reversed the Commission and held that the claimant had proven his eligibility for odd lot treatment and awarded him permanent total disability benefits. The Division now appeals. We will reverse the district court and affirm the Commission's denial of permanent total disability benefits.

ISSUE

[¶ 2] Did the Medical Commission err when it found that the claimant did not qualify for permanent total disability benefits under the odd lot doctrine?

FACTS

[¶ 3] At the time of his contested case hearing before the Commission, the claimant was 51 years old. The claimant dropped out of school in the ninth grade and reads at a fourth grade level. He had been employed throughout his life as a truck driver, oil field worker, and equipment operator.

[¶ 4] In September 1990, the claimant worked for MI Drilling Fluids, LLC (the employer). He was injured at work when a loader he was operating slid down a ramp and collided with a pile of material at the base of the ramp. The claimant stated that he felt a tear under his shoulder blade and sought chiropractic treatment, but he did not report the injury to the Division.

[¶ 5] In September 1991, the claimant experienced another workplace injury when an employee struck him from behind hard enough "to be knocked off balance." This injury was reported to the employer and the claimant sought workers' compensation benefits. The Office of Administrative Hearings determined that the claimant had suffered a compensable workplace injury to his back and he was eventually assigned a 9% permanent whole body impairment based on loss of motion as well as a 36% loss of earnings award.

[¶ 6] From 1992 until he filed the instant claim, the claimant was examined by a variety of doctors and rehabilitation specialists. During these visits, the claimant complained of increasing back pain, pain in his arms and legs, numbness in his limbs, headaches, insomnia, stress, and depression. Different doctors attributed these symptoms to different disorders. Some doctors attributed the symptoms to the claimant's original workplace injuries while others attributed some or all of the symptoms to intervening falls, diabetes, high blood pressure, heart problems, carpal tunnel syndrome, obesity, and/or psychological issues. On December 31, 2001, the claimant was also awarded Social Security Disability benefits because he was "disabled as defined in the Social Security Act . . ."

[¶ 7] The claimant applied for permanent total disability benefits but the claim was denied by the Division on July 3, 2002. The claimant objected to that determination and the Commission held a hearing on May 7, 2003. The claimant argued that he qualified for permanent total disability benefits under what is known as the odd lot doctrine. On May 29, the Commission issued an order denying the claimant benefits, concluding that the claimant's current disability was due to factors unrelated to his compensable workplace injuries.

[¶ 8] The claimant appealed the Commission's decision to the district court. The district court reversed the Commission, holding that the claimant had proven that he was entitled to permanent total disability benefits under the odd lot doctrine. The Division now appeals the district court's ruling.

STANDARD OF REVIEW

[¶ 9] When reviewing administrative action, we conduct our review as if the appeal had come directly from the administrative agency and afford no deference to the conclusions of the district court. Hicks v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2005 WY 11, ¶ 16, 105 P.3d 462, 469 (Wyo. 2005). The scope of our review is limited by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2005), 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.

[¶ 10] The claimant in a workers' compensation case bears the burden of proving each element of his claim by a preponderance of the evidence. Decker v. State ex rel. Wyo. Med. Comm'n, 2005 WY 160, ¶ 21, 124 P.3d 686, 693 (Wyo.2005). When both parties present evidence, as in the instant case, we apply the substantial evidence test. Id., ¶ 23, 124 P.3d at 694. When reviewing findings of fact under the substantial evidence test,

"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."

Cramer v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2005 WY 124, ¶ 10, 120 P.3d

668, 671 (Wyo.2005) (quoting Newman v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2002 WY 91, ¶ 12, 49 P.3d 163, 168 (Wyo.2002)).

[¶ 11] Even where substantial evidence supports an administrative decision, this Court applies the arbitrary and capricious standard of review as a "safety net" to catch agency actions that violate the Wyoming Administrative Procedures Act. Decker, ¶ 24, 124 P.3d at 694. "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." Padilla v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2004 WY 10, ¶ 6, 84 P.3d 960, 962 (Wyo.2004).

[¶ 12] Of course, we review conclusions of law de novo to determine if they are truly in accordance with the law. Blommel v. State ex rel. Wyo. Dep't of Empl., Div. of Workers' Safety & Comp., 2005 WY 128, ¶ 9, 120 P.3d 1013, 1015 (Wyo.2005).

DISCUSSION

[¶ 13] On appeal, the Division argues that the Commission properly applied the odd lot doctrine and found that the claimant did not qualify for permanent total disability benefits. The claimant counters that the district court, not the Commission, properly applied the doctrine and found that he was entitled to such benefits. We first adopted the odd lot doctrine in In re Iles, 56 Wyo. 443, 110 P.2d 826 (Wyo.1941), and we recently also said the following:

This court has long recognized the odd lot doctrine with respect to permanent total disability determinations made within the purview of the Wyoming Worker's Compensation Act. In the case of Schepanovich v. United States Steel Corp., 669 P.2d 522, 525 (Wyo.1983) this court stated:

In our opinion in Cardin v. Morrison-Knudsen, Wyo., 603 P.2d 862 (1979), this court adopted a definition of the "odd-lot doctrine" as follows:

". . . The `odd-lot doctrine' is described in 2 Larson, Law of Workmen's Compensation, § 57.51 at p. 10-109 (1976), as providing that permanent total disability `may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well known branch of the labor market.'" 603 P.2d at 863-864.

An injured workman who comes within the "odd-lot doctrine" need not show that he is totally incapable of doing any work at all in order to be entitled to an award for permanent total disability. This court has stated the proposition in this fashion:

". . . The theory of counsel for the employer appears to be that the workman must go further than to show that he cannot do any hard work; that he must also show that he cannot do light work. Of course, it would almost be impossible, in many instances, for a man educated only to do hard work, to show that at some time or other some good Samaritan might not turn up and offer him some light work which he might be able to do. The law does not require impossibilities. It is stated in 71 C.J. 1071 that `where it is found that the employee is permanently and totally disabled so far as hard or manual work is concerned, but that he might do light work of a special nature not generally available, the burden is on the employer to show that such special work is available to the employee.'...