Nelson v. Sheridan Manor

• Citation: 939 P.2d 252
• Decision Date: 17 June 1997
• Docket Number: No. 96-110,96-110
• Parties: In the Matter of the Worker's Compensation Claim of: Beverly NELSON, Appellant (Employee-Petitioner), v. SHERIDAN MANOR, Appellee (Employer-Respondent), v. STATE of Wyoming ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Objector-Respondent).
• Court: Wyoming Supreme Court

Page 252

939 P.2d 252

In the Matter of the Worker's Compensation Claim of:

Beverly NELSON, Appellant (Employee-Petitioner), v. SHERIDAN MANOR, Appellee (Employer-Respondent), v. STATE of Wyoming ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Objector-Respondent).

No. 96-110.

Supreme Court of Wyoming.

June 17, 1997.

Rene Botten of Northern Wyoming Law Associates, Sheridan, for Appellant.

Kathleen B. Dixon of Murane & Bostwick, Casper, for Appellee Sheridan Manor.

Robert R. Rogers and Anthony T. Wendtland of Davis & Cannon, Sheridan, for Appellee State ex rel. Wyoming Workers' Safety & Compensation Div.

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

TAYLOR, Chief Justice.

Beverly Nelson (Nelson) appeals the denial of her worker's compensation claim for temporary total disability benefits. Nelson was allegedly injured while on duty as a cook-trainee at Sheridan Manor in Sheridan, Wyoming. After a contested case hearing, the hearing examiner concluded that Nelson failed to establish that her employment at Sheridan Manor was the cause of her symptoms. Nelson contends the hearing examiner erroneously considered deposition testimony which was not formally offered into evidence at the contested case hearing. She further asserts the delay between the hearing and the decision caused substantial prejudice to her case. Finding no error in the consideration of the deposition testimony nor any prejudice to Nelson caused by delay, we affirm.

I. ISSUES

As appellant, Nelson states the issues as follows:

I. Is the Findings of Fact, Conclusions of Law and Order of the hearing officer denying the award of benefits arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law?

II. Did the hearing officer abuse his discretion in waiting nine months to render a decision?

Appellee, Sheridan Manor, states similar issues:

I. The hearing examiner's findings of fact and conclusions of law were not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law because the hearing examiner relied upon deposition testimony of which he took judicial notice.

II. The Appellant has failed to prove that an alleged delay between the hearing on May 4, 1995 and the hearing officer's final decision on February 15, 1996 caused her prejudice.

Appellee, State ex rel. Wyoming Workers' Safety and Compensation Division (Division) states their issues:

I. Should issues raised by Petitioner the first time on appeal be considered?

II. Did the Hearing Officer's Findings of Fact and Conclusions of Law contain prejudicial error?

II. FACTS

On October 27, 1994, Nelson began her eleven-day employment with Sheridan Manor. Originally hired to work as a kitchen aid, Nelson was quickly advanced to cook-trainee. Her last day of work was November 10, 1994. Prior to her employment with Sheridan Manor, Nelson was employed for two years as a seamstress with Big Horn Threads. While a seamstress, Nelson worked on a double needle sewing machine attaching zippers and stitching hemwork which routinely entailed cutting thread and manipulating material.

On November 15, 1994, Nelson filed a worker's compensation claim for temporary total benefits due to carpal tunnel syndrome in both wrists allegedly received or exacerbated while working at Sheridan Manor. Sheridan Manor objected to the claim and a contested hearing was held on May 4, 1995.

At the contested case hearing, Nelson introduced her own testimony, that of her daughter, and the deposition testimony of Dr. Batty, her treating physician. Nelson testified that on November 8, 1994, her first day as a cook-trainee, she felt "three pops" in her left wrist while removing a pan from a low oven. She then experienced a "sharp pain" up toward her elbow. Two days later, she felt a "grinding" in her neck and "something sharp" in her right elbow. The next day, her arms, hands and wrists were swollen and painful. She stated she never had experienced any similar symptoms and since it was her day off, she waited to see if the swelling would go down.

Nelson testified that when the symptoms continued into the following day, November 12, she attempted to call several physicians for an appointment. Dr. Batty, a local physician, returned her call and made an appointment for a consultation on Monday, November 14, 1994. After examining Nelson on November 14, Dr. Batty diagnosed her condition as "bilateral carpal tunnel in both wrists."

Sheridan Manor called Virginia Fisher (Fisher), Nelson's supervisor, who testified Nelson telephoned her on November 12, at which time she told Fisher she would not be coming in the next day because her hands were swollen. When Fisher asked Nelson if she had been "injured on the job," Nelson replied no, she had "carpal tunnel" and "she had it a long time." Fisher also testified that on November 15, 1994, the same day Nelson filled out her injury report with the court clerk, Nelson came to Sheridan Manor to return her keys. At that time, Nelson told Fisher that Dr. Batty had diagnosed her condition as carpal tunnel and she did not know if she would return to work. Fisher testified Nelson never said anything to Fisher about the injury being related to work at Sheridan Manor and that Fisher only learned of the alleged work/injury relationship a few days later from Nelson's co-employee.

Over a period of time, Dr. Batty referred Nelson to several physicians for further testing. Eventually, Nelson's physicians concluded that Nelson's tests indicated carpal tunnel syndrome in her left wrist, tendinitis in her right elbow, and cervical radiculopathy. Her condition was treated with home cervical traction and nonsteroidal anti-inflammatory agents.

Dr. Cole, a neurologist in Casper, Wyoming, conducted an independent medical examination of Nelson at the request of the Division and Sheridan Manor. He later submitted a report and was deposed by Nelson. During the contested case hearing at the close of Nelson's evidence, the Division stated it would present no witnesses, but would "rely on what is in Dr. Cole's deposition and the cross-examination of plaintiff's case." Nelson made no objection to the Division's reliance on the deposition testimony.

At the close of the proceeding, the hearing examiner told counsel he would be unable to render an immediate decision because the "pivotal" testimony would be found in the, as yet, unread depositions of Dr. Cole and Dr. Batty. After nine months passed without a decision, Nelson petitioned the district court for a Peremptory Writ of Mandamus. Eight days later, on February 15, 1996, the hearing examiner issued its order denying benefits which cited deposition testimony from the depositions of Dr. Batty, Dr. Cole and Fisher. On March 11, 1996, Nelson filed a petition for review with the district court. Pursuant to W.R.A.P. 12.09, this case was certified to the Wyoming Supreme Court.

III. STANDARD OF REVIEW

Judicial review of an agency action is conducted in accordance with Wyo. Stat. § 16-3-114(c) (1990). W.R.A.P. 12.09. Pursuant to Wyo. Stat. § 16-3-114(c)(ii)(A), the reviewing court shall "[h]old unlawful and set aside agency action, findings and conclusions found to be * * * [a]rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law[.]" See Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 873, 876 (Wyo.1994). An agency's findings of fact will not be adjusted unless clearly contrary to the overwhelming weight of the evidence. Id. at 875. We do not afford the same deference, however, to an agency's conclusion of law. An agency's decision is affirmed only if the conclusion of law is correct; otherwise, we correct it. Matter of Corman, 909 P.2d 966, 970 (Wyo.1996). When the determination before us is a mixed question of fact and law, we defer to the agency's findings of basic fact but correct misapplications of the law to those facts. Aanenson v. State ex rel. Wyoming Worker's Compensation Div., 842 P.2d 1077, 1080 (Wyo.1992).

IV. DISCUSSION

A. RELIANCE ON DEPOSITION TESTIMONY NOT FORMALLY INTRODUCED AT THE CONTESTED CASE HEARING

Nelson claims the hearing examiner improperly relied on the deposition testimony of Dr. Cole and Fisher in reaching his conclusions because the depositions "were never introduced or made a part of the record." (Emphasis in original.) Not only does this argument lack merit, it is not properly before us on appeal due to Nelson's failure to raise the issue below.

As we have consistently stated over many years, Wyoming appellate courts do not review issues raised for the first time on appeal. Stuckey v. State ex rel. Wyoming Worker's Compensation Div., 890 P.2d 1097, 1100 (Wyo.1995); Campbell v. Department of Family Services, 881 P.2d 1066, 1070 (Wyo.1994). This rule is equally applicable to appeals from administrative decisions as to those from district courts. Matter of State Bank Charter Application of Sec. Bank, Buffalo, 606 P.2d 296, 299-300 (Wyo.1980). In Matter of State Bank Charter Application of Sec. Bank, Buffalo, 606 P.2d at 299, we refused to consider appellant's claim that the hearing examiner took into account evidence which was not part of the administrative record, quoting Wyoming Bancorporation v. Bonham, 527 P.2d 432, 439 (Wyo.1974):

"Unless adverse parties appearing before administrators or administrative bodies are required to frame issues and contentions for decision by the hearing body, such hearings will become meaningless charades necessitating upon appeal what would be factually a trial de novo contrary to the purpose and philosophy of the Administrative Procedures Act."

Nelson never presented the hearing examiner with objections to the use of the deposition testimony at the contested case hearing nor did she utilize any procedure to raise her objections after the decision was rendered. Matter of State Bank Charter Application of Sec. Bank, Buffalo, 606 P.2d at 299 n. 4; Wyo. Stat. § 16-3-109 (19...