Olivas v. State ex rel. Workers' Safety

• Decision Date: 16 March 2006
• Docket Number: No. 05-79.,05-79.
• Parties: In the Matter of the Worker's Compensation Claim of: David E. OLIVAS, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

130 P.3d 476

2006 WY 29

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

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

No. 05-79.

Supreme Court of Wyoming.

March 16, 2006.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: David M. Gosar of Jackson, Wyoming.

Representing Appellee: Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Michael N. Thatcher, Student Intern. Argument by Mr. Thatcher.

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

HILL, Chief Justice.

[¶ 1] David E. Olivas (Olivas) suffered a work-related injury, and temporary total disability benefits were approved. After receiving a permanent partial impairment rating, he applied for permanent partial disability benefits. The Workers' Safety and Compensation Division (the Division) denied benefits on the grounds that Olivas had not been actively seeking work. After a contested case hearing, a hearing examiner upheld the denial of benefits. The district court affirmed and Olivas has appealed to this Court. We conclude that the order denying benefits is facially insufficient to permit review; we reverse the district court's order affirming, and remand to vacate the order denying benefits.

ISSUES

[¶ 2] Olivas sets out three issues for review:

ISSUE I: Did the OAH err as a matter of law by impliedly rejecting Mr. Olivas's position that, because NO jobs were available to him that paid 95% of his monthly gross earnings at the time of injury, he qualified for permanent partial disability benefits? As a matter of law, if Employee-Claimant searches for "suitable employment" and discovers that no jobs exist that pay 95% of his previous earnings, and this fact is confirmed by the credible testimony of Employee-Claimant and an employment advisor, and furthermore, the Division stipulates that this element of the claim is not disputed, is he required to apply for lesser paying jobs in order to satisfy the "actively sought suitable work" portion of the permanent partial disability statutes, W.S. § 27-14-405(B)(III)?

ISSUE II: Did the OAH err as a matter of law by rejecting Employee-Claimant's position that enrollment in full time vocational retraining met the "actively sought suitable work" requirement of W.S. § 27-14-405(B)(III)?

ISSUE III: Is the Order Denying Benefits supported by substantial evidence, or is the decision arbitrary and capricious, due to the following:

1. Mr. Olivas met the actively seeking work requirement because he was employed full time when the evidentiary hearing was held. This employment was in the field in which he obtained vocational retraining.

2. An essential finding was not supported by substantial evidence. The OAH erroneously determined that Mr. Olivas testified that he would not accept any employment that interfered with his schooling when, in fact, Mr. Olivas testified that he would have accepted employment that paid $20 per hour—an amount approximately 80% of his monthly gross earnings at the time of injury.

3. The OAH erroneously determined that Mr. Olivas was not actively seeking work when no work was available to him that paid 95% of the $25 per hour he was making at the time of injury.

4. The OAH erroneously determined that Mr. Olivas was not actively seeking work when it failed to recognize that attending vocational retraining full time satisfies this requirement.

5. The OAH's determination that Mr. Olivas was not actively seeking work is contrary to the substantial evidence presented regarding his persistent and sustained efforts to find employment.

The Division responds with a statement of two issues:

Issue I: Whether substantial evidence supports the hearing examiner's finding that Olivas was not actively seeking suitable work?

Issue II: Whether the hearing examiner's decision denying benefits is in accordance with law?

FACTS

[¶ 3] In November of 2000, Olivas suffered a work-related injury to his shoulders while employed as a miner for FMC Corporation in Rock Springs, Wyoming. In March of 2001, Olivas was awarded temporary total disability benefits. Believing that his injury foreclosed any future in the mining industry, Olivas accepted a severance package ending his employment with FMC on April 29, 2001. In August, Olivas moved to New Mexico. In December, a functional capacity evaluation concluded that Olivas could not physically perform the tasks associated with his former employment, and that he was able to work at just above a medium level with restrictions on using his arms above shoulder height. In January of 2002, Olivas began taking classes at the Albuquerque Technical Vocational Institute (ATVI) training to become a heating and cooling service technician.

[¶ 4] Olivas filed three applications for permanent partial disability (PPD) benefits.¹ The first application was filed on January 25, 2002. In the application, Olivas checked the "no" box in response to the question, "Are you currently registered with Job Service?" On an attached form where the claimant could set forth his work search record, Olivas handwrote a note indicating that he was attending school to learn a new trade as he could no longer medically perform his former job, and that there were no other mining jobs available in the Albuquerque area. The application was denied because Olivas had not received a permanent partial impairment rating as required by Wyo. Stat. Ann. § 27-14-405(g) (LexisNexis 2005) and the Division's Rules and Regulations.

[¶ 5] After obtaining an impairment rating, Olivas filed a second application on September 20, 2002. Again, Olivas indicated in the application that he was not currently registered with Job Service. On the attached form for his work search record, Olivas wrote the following:

I am currently attending a Junior College in Albuquerque, New Mexico to study a new trade. As per my Dr. I can no longer do my old job as a miner, that I've done for the past 28 years.

Upon request I can send you verification of my school records and anything else that you might need to process this claim.

P.S. As a full time student (13 credit hrs.) I have not seeked [sic] other employment.

The Division issued a Final Determination denying benefits because Olivas had not been actively seeking work as required by Wyo. Stat. Ann. § 27-14-405(h)(iii) (LexisNexis 2005). Olivas did not object to that determination.

[¶ 6] This proceeding arose out of Olivas's third application for PPD benefits. The application was filed on August 4, 2003. This time, Olivas checked the "yes" box to the question regarding whether he had registered with Job Service. On the work search record form, Olivas listed six employers he had contacted and filed applications for employment with on July 23 or 26, 2003. The Division issued a Final Determination on August 11, 2003, denying the application for PPD benefits. Again, the Division concluded that Olivas was not actively seeking work as required by Wyo. Stat. Ann. § 27-14-405(h)(iii).

[¶ 7] Olivas filed his objection and a contested case hearing was held on March 25, 2004. Prior to the hearing, the parties stipulated that the only question was whether or not Olivas had actively sought employment and that he otherwise met all conditions for receiving PPD benefits. Both parties presented evidence: Olivas through exhibits and the testimony of two witnesses (including himself), and the Division through exhibits. Olivas testified that initially after arriving in Albuquerque, he registered with the New Mexico Department of Labor and began searching the newspapers and internet for jobs. However, Olivas decided to go to school to obtain vocational training for a new career because there were no mining jobs in the Albuquerque area, his physical limitations foreclosed employment in the construction industry, and his skills were not otherwise transferable to any other area thus leaving him qualified for minimum wage type jobs only. Olivas testified that, while in school, he continued his job search activities: He checked the newspaper and would go to the placement center at the school three times a week to check the job listings. He also noted that he remained registered with the Department of Labor where he would use his account to access on-line job listings. Olivas admitted that he did not consider minimum wage type jobs because he wanted to continue with his schooling. He claimed that he would have taken a job that paid $20.00 an hour and that he even applied for two of those jobs but was unqualified and not hired. At one point, Olivas testified that he had contacted his former Wyoming employer to see if it had work available within his physical restrictions, but was told that no jobs were available.

[¶ 8] On cross-examination, Olivas declared that he looked for part-time, as well as full-time jobs, but admitted that his schooling was his first priority and finding a job was secondary. With respect to his failure to mark "yes" to the question about registering for Job Service on his first two applications or list any job search efforts, Olivas claimed that he was confused by the application and that he mistakenly believed that he did not need to fill out that part of the application because he was searching for jobs on-line.² At one point, Olivas declared that he had no intention of quitting school to take a job, although he later stated that if something appealing in a part- or full-time capacity had come up, he would have taken it.

[¶ 9] Theresa Torres was an employment advisor at ATVI during the time that Olivas was a student. She testified that Olivas was in the placement center two to three times a week for a year to a year and a half. Torres helped Olivas look for all types of employment including part-time, full-time, as well as short and long term. She described Olivas as "extremely...