Perry v. State ex rel. Wscd

• Decision Date: 16 May 2006
• Docket Number: No. 05-54.,05-54.
• Citation: 2006 WY 61,134 P.3d 1242
• Parties: In the Matter of the Worker's Compensation Claim of Eleanor L. PERRY, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

134 P.3d 1242

2006 WY 61

In the Matter of the Worker's Compensation Claim of Eleanor L. PERRY, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. 05-54.

Supreme Court of Wyoming.

May 16, 2006.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Bernard Q. Phelan, Cheyenne, Wyoming.

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

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

KITE, Justice.

[¶ 1] Eleanor L. Perry appeals from the district court's order affirming the Office of Administrative Hearings' (OAH) denial of her claim for worker's compensation benefits. The OAH hearing examiner denied her claim in accordance with the test enunciated in Smith v. Husky Terminal Restaurant, Inc., 762 P.2d 1193 (Wyo.1988), because she was injured while violating a safety regulation. We conclude OAH properly applied the Smith test to Ms. Perry's claim and there was substantial evidence to support OAH's factual findings. Consequently, we affirm.

ISSUES

[¶ 2] Ms. Perry articulates a single issue on appeal:

When an employee deviates from a prescribed safety rule resulting in injury, should worker[s] compensation benefits be denied?

The Division phrases the issue a little differently:

In limited situations, an employee can be found to have acted outside the scope of employment by violating a work restriction when the four elements in Smith v. Husky Terminal Restaurant, Inc., 762 P.2d 1193 (Wyo.1988) are present. The issue presented in this appeal is whether the hearing examiner's application of Smith to Perry's case was in accordance with law[.]

FACTS

[¶ 3] On October 7, 2003, Ms. Perry began work as a certified nurse assistant (CNA) for Mountain Towers Healthcare and Rehabilitation Center (Mountain Towers) in Cheyenne. Mountain Towers is a nursing home facility. When she began work, Ms. Perry had just finished her training as a CNA, which included education about proper lifting techniques. On her first day of work, Ms. Perry attended Mountain Towers' employment orientation. The orientation included instructions for lifting patients who required help. Ms. Perry was informed that certain patients were classified as "two-person lifts," meaning that two people were required in order to lift the patient. Mountain Towers had a written policy forbidding its employees from lifting a patient classified as a "two-person lift" alone, and Ms. Perry signed a document acknowledging the policy. The policy was intended to protect Mountain Towers' employees and patients. The policy stated that, if another employee was not available to help with a two-person lift, the employee was to make the patient comfortable and wait for assistance. Ms. Perry was informed that violating the two-person lift policy could result in termination from employment with Mountain Towers.

[¶ 4] On October 26 through 27, 2003, Ms. Perry was working a night shift, from 10:00 p.m. through 6:00 a.m. During that shift, there were typically only three people on staff per floor—two CNAs and one licensed practical nurse (LPN). At approximately 2:30 a.m., Ms. Perry was making the rounds to check on patients, when one patient requested assistance in using the bathroom. The patient was classified as a "two-person lift" so Ms. Perry sought help. The other CNA was assisting another patient and could not immediately help Ms. Perry. The LPN refused to help her because lifting was not part of her job duties. Ms. Perry offered the patient a bed pan, but the patient refused and insisted upon getting up to use the bathroom.

[¶ 5] Ms. Perry assisted the patient to the bathroom and, at some point in the process as she was lifting the patient, the wheelchair moved. In order to prevent the patient from falling, Ms. Perry twisted and strained her lower back. She felt the strain but did not experience pain until after she had finished her shift and returned home. She was scheduled to work the next night, but called in and said she was unable to work because she had injured her back.

[¶ 6] Ms. Perry filed a report of injury in which she stated she injured her lower back when she was "transferring a 2 person transfer by [herself] and twisted and strained [her] back the wrong way while trying not to drop [the] resident as her wheelchair started to move even with [the] locks on." She sought medical treatment from various doctors for her back injury and requested worker's compensation benefits as a result of the injury. Mountain Towers objected to Ms. Perry's request for worker's compensation benefits, and the Division issued a final determination denying Ms. Perry's request for benefits on several bases.

[¶ 7] The case was referred to OAH, and a hearing examiner held a contested case hearing on May 6, 2004. The Division argued there were several reasons to deny Ms. Perry's request for worker's compensation benefits, including: Ms. Perry failed to timely report her injury to her employer and to the Division, her back injury was preexisting, her back injury did not occur while she was at work, and she was injured while violating a safety regulation. The hearing examiner found Ms. Perry had reported her injury in a timely fashion, she was injured while at work, and she did not suffer from a preexisting condition which would prevent her from obtaining worker's compensation benefits. However, the hearing examiner found Ms. Perry had violated Mountain Towers' safety rule prohibiting unassisted two person lifts and concluded, under the holding in Smith, she was not entitled to worker's compensation benefits. Ms. Perry petitioned the district court for review of the OAH decision, and the district court affirmed. She, subsequently, filed a notice of appeal from the district court's order.

STANDARD OF REVIEW

[¶ 8] "`When considering an appeal from a district court's review of agency action, we accord no special deference to the district court's conclusions. Instead, we review the case as if it had come directly to us from the administrative agency.'" Newman v. State ex. rel Wyo. Workers' Safety and Comp. Div., 2002 WY 91, ¶ 7, 49 P.3d 163, 166 (Wyo.2002) quoting French v. Amax Coal West, 960 P.2d 1023, 1027 (Wyo.1998).

[¶ 9] Ms. Perry and the Division each presented evidence to OAH. Upon appeal from a contested case hearing where both parties have presented evidence, we apply the substantial evidence standard to review the agency's findings of fact. See KG Constr., Inc. v. Sherman, 2005 WY 116, ¶ 9, 120 P.3d 145, 147-48 (Wyo.2005); Robbins v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2003 WY 29, ¶ 18, 64 P.3d 729, 732 (Wyo.2003). Substantial evidence is more than a scintilla of evidence. It consists of relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Id. However, even if the factual findings are found to be supported by substantial evidence, the ultimate agency decision may still be found to be arbitrary or capricious for other reasons. Thus, the appellate court does not examine the record only to determine if there is substantial evidence to support the agency's decision, but it also must examine all of the evidence in the record to determine whether the hearing examiner could have reasonably made its finding and order. Newman, ¶ 24, 49 P.3d at 172.

[¶ 10] An administrative agency's conclusions of law are not entitled to the same deference as its factual findings. Diamond B Serv's, Inc. v. Rohde, 2005 WY 130, ¶ 12, 120 P.3d 1031, 1038 (Wyo.2005). We review an agency's conclusions of law de novo, and "we will affirm an agency's legal conclusion only if it is in accordance with the law." Id. quoting DC Production Service v. Wyo. Dep't of Employment, 2002 WY 142, ¶ 7, 54 P.3d 768, 771 (Wyo.2002).

DISCUSSION

[¶ 11] Ms. Perry claims the hearing examiner erred by ruling that she should be denied benefits for violating the two-person lift rule. The hearing examiner relied upon our decision in Smith in concluding Ms. Perry was not entitled to worker's compensation benefits. Smith was a cook at a truck stop restaurant and had previously suffered back pain, although it was not clear her prior back pain was job related. Smith, 762 P.2d at 1194-95. She sought medical treatment for her back condition, and her physician ordered her not to lift anything weighing more than fifteen pounds. Id. at 1195. Smith's employer received a letter from her doctor containing the lifting restriction and discussed the restriction with her. The doctor's letter was posted above the manager's desk, and Smith was instructed "to have someone else lift any heavy items for her if that became necessary." Id. One night, Smith attempted to drain a bucket of marinated chickens and injured her back. Id. at 1195. She sought worker's compensation benefits for her injury, but her employer objected because her injury resulted from her violation of the lifting restriction. Id. at 1196. The district court denied benefits,¹ and Smith appealed.

[¶ 12] In reviewing the case, we looked to the definition of an "injury" which qualifies for compensation under the worker's compensation system. The statutory definition of a compensable injury requires that an injury "arise out and in the course of employment." Wyo. Stat. Ann. § 27-14-102(a)(xi) (LexisNexis 2005). The determination of whether an injury arose out of and in the course of employment is a question of fact. Farman v. State ex rel. Wyo. Workers' Comp. Div., 841 P.2d 99, 102 (Wyo.1992). In considering the employer's defense that Smith violated a known safety rule, we stated: "[p]recedent concerning the type of misconduct that is a deviation from the scope of a particular employment focuses on whether the employee knowingly does certain work specifically prohibited, as...