Lunde v. STATE EX REL. WORKERS'COMP. DIV.

• Decision Date: 07 June 2000
• Docket Number: No. 99-281.,99-281.
• Citation: 6 P.3d 1256
• Parties: Annette LUNDE, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

6 P.3d 1256

Annette LUNDE, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Respondent).

No. 99-281.

Supreme Court of Wyoming.

June 7, 2000.

Representing Appellant: Stephenson D. Emery of Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument presented by Mr. Emery.

Representing Appellee: Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General; and Bernard P. Haggerty, Senior Assistant Attorney General. Argument presented by Mr. Haggerty.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

Appellant, Annette Lunde (Lunde), seeks review of the district court's order affirming an order denying benefits issued by a hearing examiner, after a hearing into Lunde's claim for additional worker's compensation benefits. The hearing examiner concluded that Lunde had failed to meet her burden of proof to demonstrate that, because of her work-related injury, she was unable to return to employment at a comparable or higher wage than the wage she was earning at the time of her injury. We affirm.

ISSUES

Lunde advances these issues:

A. Whether the Office of Administrative Hearings ("Office") erred as a matter of law in denying Annette Lunde ("Appellant") an award of loss of earnings benefits by concluding that, for purposes of Wyo. Stat. XX-XX-XXX(h)(i), her pre-injury wage was comparable to a post-injury potential wage.

B. Whether the Office erred as a matter of law in denying appellant an award of loss of earnings benefits by refusing to consider what appellant would have earned if she had been able to continue her employment as a convenience store manager, the difference due to inflation between 1988 and 1997 wages, and the difference in cost of living and in wages between Sweetwater County, Wyoming in 1988 and Southern California in 1997 in deciding what is a "comparable wage" as that term is used in Wyo. Stat. § 27-14-405(h)(i).

Appellee, the Wyoming Workers' Compensation Division (Division) provides this restatement of the issues:

I. Is the availability of permanent partial disability benefits a mixed question of law and fact?

II. Were the Hearing Examiner's findings of basic fact supported by substantial evidence?

III. Did the Hearing Examiner properly apply the permanent partial disability statute?

FACTS

Lunde began working for a "Maverick Convenience Store" in Rock Springs in April of 1979 and was continuously employed there until an on-the-job injury made it impossible for her to continue that work. On September 6, 1988, while in the course and scope of her employment,¹ Lunde was bitten by a brown recluse spider, and the medical consequences of that event have left her disabled. Lunde did receive worker's compensation benefits for her injury. Because she was physically unable to return to work, Lunde's employment with Maverick Stores was terminated. She was treated for her injury in Wyoming for about one year and then moved to California in August of 1989 to live with her mother. She has received additional medical care there in the intervening years. Lunde has not been employed for any significant period of time since her injury and, at the time of the hearing, was receiving disability benefits from the Social Security Administration on the basis that she was disabled.²

Lunde was earning $7.34 per hour at the time of her injury, and the conclusion of the vocational evaluation was that she could presently earn $7.25 per hour.

STANDARD OF REVIEW

Our standard of review in a case such as this is well-established:

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. Martinez v. State ex rel. Wyoming Workers' Compensation Div., 917 P.2d 619, 621 (Wyo.1996). When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the "[a]rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" language of WYO. STAT. § 16-3-114(c)(ii) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant, Pederson in this instance, has the burden of proving arbitrary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 432, 439 (Wyo. 1974); Marathon Oil Co. v. Welch, 379 P.2d 832, 836 (Wyo.1963); Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of witnesses. Utech, 895 P.2d at 451, and cases there cited. The deference normally accorded to the findings of fact by a trial court is extended to the administrative agency, and the agency's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 873, 875 (Wyo.1994). Demonstrating evidentiary contradictions in the record does not establish the irrationality of the ruling, but we do examine conflicting evidence to determine if the agency reasonably could have made its finding and order based upon all of the evidence before it. Matter of Corman, 909 P.2d 966, 971 (Wyo.1996); Knight, 805 P.2d at 274; Ward v. Board of Trustees of Goshen County School Dist. No. 1, 865 P.2d 618, 623 (Wyo.1993); State ex rel. Wyoming Workers' Compensation Div. v. Ramsey, 839 P.2d 936, 941 (Wyo. 1992).

Claim of Pederson, 939 P.2d 740, 742 (Wyo. 1997); Erdman v. State ex rel. Wyoming Workers' and Safety Compensation Division, 5 P.3d 64, 65-66 (Wyo.2000).

DISCUSSION

Of the greatest significance for purposes of this appeal is Lunde's contention that there were, for all intents and purposes, very few, if any, jobs available that she could perform given the limitations created by her injury. Continuing, she asserts that, in any event, the jobs utilized in the process of determining her current wage earning ability were definitely not jobs she could physically perform, and that several of the jobs used to calculate her wage earning ability were not available or she did not meet the essential qualifications for the jobs. There is no dispute that her attending physician described her occupational limitations as follows:

A sedentary job should be appropriate if it could be met with the following restrictions. Standing requirements of less than 15 minutes at a time and an intermittent 10 minute break for rest and elevation [of her leg]. Sitting should be limited to less than 45 minutes if the leg is not elevated or less than two hours if she is permitted to elevate it. She should be able to avoid more than one flight of stairs and not be required to lift or carry more than five pounds.

Although there is clearly an apparent divergence between the attending physician's view of Lunde's occupational capabilities and the disability determination made by the Social Security Administration, the evidence presented by Lunde does not aid us in resolving that seeming contradiction.

Counterpoised to Lunde's contentions is a vocational evaluation. which was performed at the request of the Division and which identified several general types of work that Lunde could perform despite her disability. The burden of proof Lunde was required to meet is set out in Wyo. Stat. Ann. § 27-14-405(h)(i) (LEXIS 1999):

(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 comparable or higher wage than the wage the employee was earning at the time of injury[.]

Wyo. Stat. Ann. § 27-14-405(j) sets out a formula for calculating an award of benefits under § 27-14-405(h), if one is due. In Lunde's case, the Division determined that her capacity to earn $7.25 an hour was "comparable" to her $7.34 per hour earnings at the time of her injury and, therefore, she was not entitled to any additional benefits.

Lunde argues that the vocational evaluation is flawed in many respects, and that the hearing examiner's conclusions relied almost entirely upon that vocational evaluation. Hence, the decision to deny benefits is arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, or otherwise unlawful. Lunde contends that the hearing examiner should have considered inflation over the years 1988-1998, the higher cost of living in California, overtime pay that she had historically earned at Maverick, and the likelihood that she would be making about $12.50 per hour now, if she had been able to continue her career with Maverick Stores.

We agree with the Division that the statute does not authorize nor permit the hearing examiner to consider those factors. Lunde's argument certainly has considerable logical appeal, but the statute does not provide for it, and Lunde has cited no pertinent...