STATE EX REL. WORKERS'SAFETY AND COMP. DIV. v. Garl

Decision Date06 July 2001
Docket NumberNo. 00-225.,00-225.
PartiesSTATE of Wyoming ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellant (Petitioner), v. Sheila L. GARL, Appellee (Respondent).
CourtWyoming Supreme Court

Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellant.

Bill G. Hibbler, Cheyenne, WY, Representing Appellee.

Before LEHMAN, C.J.; GOLDEN, HILL, and KITE, JJ.; and DAN SPANGLER, D.J. (RET.).

KITE, Justice.

[¶ 1] The State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division (the division) challenged an award of benefits in favor of Sheila L. Garl. Following a hearing, the hearing examiner found Ms. Garl proved she suffered an injury for the purposes of the Wyoming Worker's Compensation Act; however, Ms. Garl failed to meet the timeliness requirement of Wyo. Stat. Ann. § 27-14-502(a) (LEXIS 1999). Nevertheless, the hearing examiner concluded Ms. Garl established a lack of prejudice to her employer and the division by clear and convincing evidence and, therefore, overcame the presumption of claim denial. The division filed a Petition for Judicial Review in the district court, and Ms. Garl filed a Motion to Dismiss. Pursuant to W.R.A.P. 12.09(b), the district court certified the petition and the motion to this court. We deny Ms. Garl's Motion to Dismiss and affirm the hearing examiner's order awarding benefits.

ISSUES

[¶ 2] The division raises these issues:

1. Did the Hearing Examiner err in finding that Appellee's injury did not occur over a substantial period of time?
2. Did the Hearing Examiner err in finding that Appellee established by clear and convincing evidence that neither her employer nor the Division [was] prejudiced by her untimely injury report?
3. Whether dismissal is required because Petitioner is not a proper party or is without standing to pursue or perfect an appeal of the final agency decision in this matter.

Ms. Garl rephrases the issues as:

I. Whether dismissal is required because Appellant/Petitioner is not a proper party or is without standing to pursue or perfect an appeal of the final agency decision in this matter?
II. Whether the order finding compensable injury entered by the hearing examiner is supported by substantial evidence and is in accordance with law?
FACTS

[¶ 3] Ms. Garl was employed by the Wyoming Game and Fish Department (the employer). As part of her duties in July 1999, she lifted and moved several heavy computers over a period of two to four weeks. About a week after this project began, she suffered severe pain in her right shoulder. Ms. Garl testified that she notified her supervisor and others at work that her shoulder hurt. By September 1999, the pain had not subsided. Accordingly, Ms. Garl made the first available appointment with a physician, which was on September 29, 1999.

[¶ 4] Six years prior, Ms. Garl had suffered an injury to the same shoulder when it was hyperextended and partially dislocated. She underwent six weeks of therapy to improve her condition, which included muscle strengthening. She testified that, in the interim, she had not suffered any further pain or problems with her shoulder until the most recent injury occurred at work. The physician diagnosed Ms. Garl with an aggravation of a preexisting condition. The next day, Ms. Garl sought worker's compensation benefits and filed an injury report with the employer. On October 8, 1999, Ms. Garl successfully underwent surgery to repair her shoulder.

[¶ 5] The division denied benefits on October 5, 1999. In its Final Determination, the division contended Ms. Garl could not meet her burden of proof, her injury did not meet the required definition, the injury was preexisting, and she failed to timely report to her employer and timely file an injury report. The case was referred to the Office of Administrative Hearings and was heard on March 23, 2000.

[¶ 6] At the hearing, the division offered a physician's testimony that Ms. Garl's injury was not work-related but rather was the natural progression of her previous injury. The division's physician had not examined Ms. Garl or personally asked her about her injury. The hearing examiner found the opinion of Ms. Garl's physician more credible than the speculative opinion offered by the division's physician. The hearing examiner determined Ms. Garl proved she had sustained a material aggravation to a preexisting shoulder condition and, therefore, sustained an injury covered by the Wyoming Worker's Compensation Act. The hearing examiner also concluded the evidence did not support the division's contention that the injury occurred over a substantial period of time.

[¶ 7] Finally, the hearing examiner determined Ms. Garl knew or should have known she sustained a work-related injury when she made an appointment to seek medical treatment for her shoulder pain. Therefore, she failed to timely file an injury report. However, the hearing examiner concluded Ms. Garl showed by clear and convincing evidence that neither the division nor the employer was prejudiced in investigating her accident or in monitoring her medical treatment. The hearing examiner issued an order finding a compensable injury on April 20, 2000. The division filed a Petition for Judicial Review in the First Judicial District Court. Subsequently, Ms. Garl filed a Motion to Dismiss asserting the division was not a proper party and, therefore, did not have standing to appeal. Pursuant to W.R.A.P. 12.09(b), the district court certified all issues to this court.

STANDARD OF REVIEW

[¶ 8] An administrative agency's decision certified directly to this court is reviewed under the same appellate standards applicable to the reviewing court of the first instance. Collicott v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2001 WY 35, ¶ 4, 20 P.3d 1077, ¶ 4 (Wyo. 2001). Our judicial review is limited to those considerations specified in Wyo. Stat. Ann. § 16-3-114(c) (LEXIS 1999) which provides in pertinent part:

(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:
...
(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;
...
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶ 9] The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are questions of law over which our review authority is plenary. Collicott, ¶ 4. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Id. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. Id.

DISCUSSION
A. Occurrence of the Injury

[¶ 10] The first question is whether Ms. Garl was required to prove the elements of a single occurrence injury or an injury which occurred over a substantial period of time. The hearing examiner found the evidence did not support the division's assertion that the injury occurred over a substantial period of time. The distinction is significant as the consequence of incurring an injury over a substantial period of time results in a higher burden of proof for the claimant. Yenne-Tully v. Workers' Safety and Compensation Division, Department of Employment, 12 P.3d 170, 172 (Wyo.2000). Wyo. Stat. Ann. § 27-14-603(a) (LEXIS 1999) reads:

(a) The burden of proof in contested cases involving injuries which occur over a substantial period of time is on the employee to prove by competent medical authority that his claim arose out of and in the course of his employment and to prove by a preponderance of evidence that:
(i) There is a direct causal connection between the condition or circumstances under which the work is performed and the injury;
(ii) The injury can be seen to have followed as a natural incident of the work as a result of the employment;
(iii) The injury can fairly be traced to the employment as a proximate cause;
(iv) The injury does not come from a hazard to which employees would have been equally exposed outside of the employment; and
(v) The injury is incidental to the character of the business and not independent of the relation of employer and employee.

[¶ 11] We note the parties' agreement that Ms. Garl's injury occurred over a two-week period and the real dispute at issue is whether that constitutes a single brief occurrence or one which occurred over a substantial period of time. The determination of whether an injury was a single occurrence injury or an injury which occurred over time is one of fact. Murray v. State ex rel. Wyoming Workers' Safety and Compensation Division, 993 P.2d 327, 331 (Wyo.1999). We afford respect and deference to an administrative agency's findings of fact if they are supported by substantial evidence. Aanenson v. State ex rel. Wyoming Worker's Compensation Division, 842 P.2d 1077, 1079 (Wyo.1992).

[¶ 12] The legislature does not provide direction as to the distinction between what constitutes an injury that was the result of a single brief occurrence as opposed to an injury which occurred over a substantial period of time. See Wyo. Stat. Ann. § 27-14-503 (LEXIS 1999). Yenne-Tully, 12 P.3d at 172, provides this court's most extensive direction regarding Wyo. Stat. Ann. § 27-14-603 (LEXIS 1999):

[Section]
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