ABEYTA v. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION
2004 WY 50
88 P.3d 1072
Case Number: 03-175
Decided: 05/05/2004
APRIL TERM, A.D. 2004
IN THE MATTER OF THE WORKER'S
COMPENSATION CLAIM OF:
GILBERT A. ABEYTA, AN EMPLOYEE
OF DON KEHN CONSTRUCTION,
Appellant
(Claimant),
v.
STATE OF WYOMING ex rel. WYOMING
WORKERS' SAFETY AND COMPENSATION
DIVISION,
Appellee
(Respondent).
Appeal from the District Court of Laramie County
The Honorable Edward Grant, Judge
Representing Appellant:
Bert T. Ahlstrom, Jr., 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, LEHMAN, KITE, and VOIGT, JJ.
KITE, Justice.
[1] After a work related injury, Gilbert A. Abeyta (Abeyta) applied for and received permanent partial disability benefits under the Wyoming Workers Compensation Act, Wyo. Stat. Ann. 27-14-101, et seq. Mr. Abeyta then applied for a permanent partial disability award based on loss of earning capacity. The Wyoming Workers Compensation Division (Division) denied Mr. Abeytas claim, finding he failed to prove he actively sought suitable work within the meaning of Wyo. Stat. Ann. 27-14-405(h)(iii) (LexisNexis 2003). Mr. Abeyta objected, a hearing was held and the hearing examiner denied benefits on the same ground. Mr. Abeyta appealed to the district court, which affirmed the denial of benefits. In his appeal to this Court, we also affirm.
ISSUES
[2] Mr. Abeyta presents the following issue:
Whether the order of the hearing examiner denying permanent partial disability benefits to appellant upon the ground that he failed to comply with the work search requirements of the law, constituted an abuse of discretion, and/or was arbitrary or capricious, under the facts and circumstances of this case.
[3] The Division re-states the issue as follows:
Whether the Hearing Examiners finding that Appellant failed to prove he actively sought suitable work, considering his health, education, training and experience as required by W.S. 27-14-405(h)(iii) was supported by substantial evidence.
FACTS
[4] On May 7, 2001, Mr. Abeyta fell at work and injured his left wrist. He filed a report of injury with the Division and received temporary total disability benefits. He then applied for permanent partial disability benefits, received a nine percent whole body impairment rating by the evaluating physician and was awarded permanent partial impairment benefits. On April 26, 2002, Mr. Abeyta applied for a permanent partial disability award based upon a loss of earning capacity. Several weeks later, he submitted a work search record showing that between May 6 and 10, 2002, he contacted three employers to inquire about work but did not submit applications. Based upon the work search record, the Division concluded Mr. Abeyta was not actively seeking work as required and was not eligible for a permanent partial disability award. The Division issued a final determination denying Mr. Abeytas application. Mr. Abeyta objected to the determination and a contested case hearing was held.
[5] At the time of the hearing, Mr. Abeyta was 58 years old, had worked as a concrete finisher for 40 years and had an 8th grade education. He claimed at the hearing that he did everything he was told to do in carrying out his job search and, given his limited education and lack of experience with the workers compensation system, he should not be penalized if his efforts fell short of what was required. The hearing examiner concluded:
[Mr.] Abeytas testimony that he did not understand what was required of him in terms of a work search lacked credibility. [Mr.] Abeyta has not proven, by a preponderance of the evidence, that he engaged in a systematic and sustained effort to obtain work.
The hearing examiner upheld the denial of Mr. Abeytas claim for a permanent partial disability award.
STANDARD OF REVIEW
[T]he substantial evidence test is the appropriate standard of review in appeals from Wyoming Administrative Procedures Act contested case proceedings when factual findings are involved and both parties submit evidence. . . . We afford respect and deference to a hearing examiner's findings of fact if they are supported by substantial evidence. Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. A hearing examiner's conclusions of law are afforded no special deference and will be affirmed only if truly in accord with law.
Salas v. General Chemical, 2003 WY 79, 9, 71 P.3d 708, 9 (Wyo. 2003) (citations omitted). Appeals from contested case hearings presenting questions of law are reviewed de novo. Bruns v. TW Services, Inc., 2001 WY 127, 14, 36 P.3d 608, 14 (Wyo. 2001). A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. Salas, 9.
Even when the factual findings are found to be sufficient under the substantial evidence test, . . . this court may be required to apply the arbitrary and capricious standard as a safety net to catch other agency action which prejudiced a partys substantial right to the administrative proceeding or which might be contrary to the other WAPA review standards.
State ex rel. Department of Transportation v. Legarda, 2003 WY 130, 10, 77 P.3d 708, 10 (Wyo. 2003) citing Bryant v. State ex rel. Department of Transportation, 2002 WY 140, 9-11, 55 P.3d 4, 9-11 (Wyo. 2002) (citations omitted.)
DISCUSSION
[6] Mr. Abeyta sought a permanent partial disability award pursuant to Wyo. Stat. Ann. 27-14-405(h) (LEXIS 2000), which provided as follows:
(h) An injured employee awarded permanent partial impairment benefits may apply for a permanent disability award subject to the following terms and conditions:
(i) The injured employee is because of the injury, unable to return to employment at a wage that is at least ninety-five percent (95%) of the monthly gross earnings the employee was earning at the time of injury;
(ii) An application for permanent partial disability is filed not before three (3) months after the date of ascertainable loss or three (3) months before the last scheduled impairment payment, whichever occurs later, but in no event later than one (1) year following the later date; and
(iii) The employee has actively sought suitable work, considering the employee's health, education, training and experience.
Citationizer Summary of Documents Citing This Document
Cite | Name | Level | |
---|---|---|---|
Wyoming Supreme Court Cases | |||
Cite | Name | Level | |
2006 WY 29, 130 P.3d 476, | IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: DAVID E. OLIVAS V. STATE OF WYOMING, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION | Cited | |
2006 WY 82, 138 P.3d 185, | IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: LENA CHAVEZ V. MEMORIAL HOSPITAL OF SWEETWATER COUNTY, STATE OF WYOMING, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION | Discussed | |
2006 WY 114, 142 P.3d 686, | IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: KIRK T. BONSELL V. STATE OF WYOMING, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISON | Discussed | |
2008 WY 125, | IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF CARL L. BALDWIN: STATE OF WYOMING, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION V. CARL L. BALDWIN | Discussed at Length | |
2009 WY 34, 202 P.3d 1064, | IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF DAVID BLOCK: DAVID BLOCK V. STATE OF WYOMING ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION | Discussed |
Cite | Name | Level | |
---|---|---|---|
Wyoming Supreme Court Cases | |||
Cite | Name | Level | |
2001 WY 48, 23 P.3d 32, | JOHNSON v. WYOMING WORKERS' SAFETY AND COMPENSATION DIV. | Discussed | |
2001 WY 127, 36 P.3d 608, | BRUNS v. TW SERVICES, INC. | Cited | |
2002 WY 140, 55 P.3d 4, | BRYANT v. WYOMING DEPARTMENT OF TRANSPORTATION | Discussed | |
2002 WY 175, 58 P.3d 924, | HERMOSILLO v. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION | Discussed | |
2003 WY 79, 71 P.3d 708, | SALAS v. GENERAL CHEMICAL | Discussed | |
2003 WY 130, 77 P.3d 708, | WYOMING DEPARTMENT OF TRANSPORTATION v. LEGARDA | Discussed | |
2004 WY 34, 86 P.3d 875, | LUDWIG v. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION | Discussed |