Vaughan v. State ex rel. Wyoming Workers' Compensation Division

Decision Date06 September 2002
Docket NumberNo. 01-31.,01-31.
Citation53 P.3d 559,2002 WY 131
PartiesTerry Ray VAUGHAN, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
CourtWyoming Supreme Court

Keith R. Nachbar, Casper, WY, Representing Appellant. Argument by Mr. Nachbar.

Gay Woodhouse, Attorney General; Gerald L. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee. Argument by Mr. Delicath.

Before HILL, C.J., and GOLDEN, LEHMAN,1 KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] This is an appeal from a determination of the State Medical Commission (Medical Commission) denying the permanent total disability claim of appellant Terry Ray Vaughan (Vaughan). We reverse and remand.

ISSUES

[¶ 2] Vaughan sets forth the following issues:

1. Did the Medical Commission commit reversible error in failing to apply the odd lot doctrine in this case?
2. Did the Medical Commission panel improperly interpret and apply the definition of permanent total disability in denying the Claimant's benefits?
3. Is the unwillingness of the Claimant to become dependent on prescription pain medication a proper basis for denial of permanent total disability benefits, where the Division did not plead a harmful or injurious practice defense to the claim?

Appellee State of Wyoming ex rel. Wyoming Workers' Compensation Division (Division), phrases the issues on appeal as:

I. Does substantial evidence support the Medical Commission's determination that Appellant is not permanently totally disabled?
II. Did the Medical Commission err in applying the definition of permanent total disability from Wyo. Stat. Ann. § 27-14-102(a)(xvi)?
FACTS

[¶ 3] Vaughan suffered a serious work related back injury in 1994. After a number of surgeries, Vaughan received a twenty-three percent permanent partial impairment award in 1999. Vaughan's condition then worsened and, after failed attempts to secure employment given his physical limitations, Vaughan made an application for permanent total disability benefits which was denied by the Division. Vaughan appealed this determination, and a contested case hearing was held before the Medical Commission, with the Medical Commission upholding the decision of the Division. Vaughan then filed a petition for review before the district court, and this matter was certified directly to this court for appellate review.

STANDARD OF REVIEW

[¶ 4] Judicial review of an agency action is directed by Wyo. Stat. Ann. § 16-3-114.2 Serda v. State ex rel. Workers' Safety and Compensation Div., 2002 WY 38, ¶ 18, 42 P.3d 466, ¶ 18 (Wyo.2002). Our standard of review when reviewing administrative agency action was recently clarified and refined in the case of Newman v. State ex rel. Workers' Safety and Compensation Div., 2002 WY 91, 49 P.3d 163 (Wyo.2002). That case held that "the substantial evidence test is the appropriate standard of review ... when factual findings are involved and both parties submit evidence." Newman, at ¶ 22.

[¶ 5] In appeals where both parties submitted evidence at the hearing below, and the dispute is over the soundness of the factual findings of the agency, Newman mandates the appellate review be limited to application of the substantial evidence test. Id. This is true regardless of which party appeals from the agency decision. The substantial evidence test provides:

In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a scintilla of evidence.

Newman, at ¶ 12 (quoting State ex rel. Workers' Safety and Compensation Div. v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, ¶ 10 (Wyo.2001)). In addition, we held that this court is required to review the entire record in making its ultimate determination on appeal.3 Newman, at ¶ 19 and ¶¶ 24-26.

[¶ 6] In State ex rel. Workers' Safety and Compensation Div. v. Garl, 2001 WY 59, ¶ 9, 26 P.3d 1029, ¶ 9 (Wyo.2001), we further recognized that:

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 [v. State ex rel. Workers' Safety and Compensation Div., 2001 WY 35], ¶ 4[, 20 P.3d 1077, ¶ 4 (Wyo. 2001)]. 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.

[¶ 7] Moreover, the de novo review by this court of the conclusions and application of law made by the administrative agency should not be confused with the arbitrary-and-capricious standard of review enumerated in Newman. Newman provides that even when the factual findings are found to be sufficient under the substantial evidence test, this court could possibly be required to apply the arbitrary-and-capricious standard as a "safety net" to catch other agency action which prejudiced a party's substantial right to the administrative proceeding or which might be contrary to the other WAPA review standards. A purely demonstrative listing is provided of situations which might warrant the consideration of the arbitrary-and-capricious standard in addition to the substantial evidence test.4 Newman, at ¶ 23. However, the instant appeal presents no such unique circumstances. In accord see Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

DISCUSSION

[¶ 8] Vaughan argues it was reversible error for the Medical Commission to fail to apply the odd lot doctrine with respect to his permanent total disability claim. This court has long recognized the odd lot doctrine with respect to permanent total disability determinations made within the purview of the Wyoming Worker's Compensation Act. In the case of Schepanovich v. United States Steel Corp., 669 P.2d 522, 525 (Wyo.1983) this court stated:

In our opinion in Cardin v. Morrison-Knudsen, Wyo., 603 P.2d 862 (1979), this court adopted a definition of the "odd-lot doctrine" as follows:
"... The `odd-lot doctrine' is described in 2 Larson, Law of Workmen's Compensation, § 57.51 at p. 10-109 (1976), as providing that permanent total disability `may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well known branch of the labor market.'" 603 P.2d at 863-864.
An injured workman who comes within the "odd-lot doctrine" need not show that he is totally incapable of doing any work at all in order to be entitled to an award for permanent total disability. E.R. Moore Co. v. Industrial Commission, 71 Ill.2d 353, 17 Ill.Dec. 207, 376 N.E.2d 206 (1978); Wilson v. Weyerhaeuser Company, 30 Or. App. 403, 567 P.2d 567 (1977); and 2 Larson, Workmen's Compensation Law, § 57.51, at 10-164.21 (1982). This court has stated the proposition in this fashion:
"... The theory of counsel for the employer appears to be that the workman must go further than to show that he cannot do any hard work; that he must also show that he cannot do light work. Of course, it would almost be impossible, in many instances, for a man educated only to do hard work, to show that at some time or other some good Samaritan might not turn up and offer him some light work which he might be able to do. The law does not require impossibilities. It is stated in 71 C.J. 1071 that `where it is found that the employee is permanently and totally disabled so far as hard or manual work is concerned, but that he might do light work of a special nature not generally available, the burden is on the employer to show that such special work is available to the employee.' ..." In re Iles, 56 Wyo. 443, 452, 110 P.2d 826 (1941).

[¶ 9] This court went on further to enunciate in Schepanovich, at 528:

The burden of proof initially is assigned to the injured workman who is seeking to qualify as permanently totally disabled under the "odd-lot doctrine" to demonstrate that he is incapacitated "from performing any work at any gainful occupation for which he is reasonably suited by experience and training." Section 27-12-405(a), W.S.1977; Cardin v. Morrison-Knudsen, supra. The test to be invoked is whether the workman is so disabled that the services which he is reasonably equipped to perform by his experience and training are not marketable in a well-known branch of the labor market in the community so as to provide a steady and continuous source of income rather than sporadic or intermittent employment. See 2 Larson, Workmen's Compensation Law, § 57.51 (1982). If that showing is made, the burden of proof is then shifted to the employer to show that light work of a special nature which the employee could perform but which is not generally available in fact is available to the employee. In re Iles, supra; Cardin v. Morrison Knudsen, supra.

[¶ 10] Finally, this court adopted the following rule formulated in 2 Larson, Workmen's Compensation Law, § 57.61, at 10-164.95 to 1-164.114 (1982) through its opinion in Schepanovich, at 528-29:

"... If the evidence of degree of obvious physical impairment, coupled with other facts such as the claimant's mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work, and then round out the case for noncompensability by adding a presumption
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