Summary 2006 WY 114

Summary of Decision issued September 14, 2006

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Case Name: Bonsell v. State

Citation: 2006 WY 114

Docket Number: 05-273

Appeal from the District Court of Sweetwater County, the Honorable Nena James, Judge

Representing Appellant (Respondent): Bill G. Hibbler, Cheyenne, Wyoming.

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

Issue: Whether the OAH decision awarding permanent partial disability benefits to Appellant lacks the support of substantial evidence and is arbitrary and capricious. Whether the OAH decision awarding permanent partial disability benefits to Appellant is contrary to law.

Holding: Appellant injured his back while working as a manager of a paint store. He earned $9.00 per hour but routinely worked overtime, bringing his gross monthly wage to $2,145.00. His injury was deemed compensable and he received medical and temporary total disability benefits. Later, he underwent a functional capacity evaluation. He was assigned a permanent partial impairment rating of 12% of his whole body. He accepted a PPI award of that percentage and thereafter applied for PPD benefits to compensate him for loss of earning capacity. The Division arranged for Appellant to be assessed by a vocational evaluator in Texas and later in Wyoming. The Division denied PPD benefits because the evaluation indicated he could return to an occupation at a comparable wage. The OAH held a contested case hearing and issued an order awarding PPD benefits. The district court reversed concluding the record did not contain substantial evidence which connected his wage reduction to his injury.
Standard of Review: In reviewing an appeal from a district court’s decision on a petition for review of an administrative action, the Court affords no deference to the district court’s decision and reviews the case as if it came directly from the agency. The substantial evidence test is the standard of review in appeals from contested case proceedings when factual findings are involved and both parties submitted evidence. The Court does not defer to the agency’s determination on issues of law.
Discussion: In order to be eligible for PPD benefits, a claimant must demonstrate he has suffered a loss of earning capacity due to a work-related injury. The burden of proof is on the injured worker and each element must be proved by a preponderance of the evidence. According to Chavez, both medical and non-medical evidence may be relevant to the determination of loss of earning capacity. The fact finder has the discretion to assign weight to the individual factors. As stated by the statute, the employee’s inability to return to employment at a wage of at least 95% of his pre-injury monthly gross earnings must be because of the injury in order to justify a PPD award. The record established that the paint store where Appellant worked closed shortly after he was injured. In addition, the undisputed facts establish that regardless of whether or not the paint store closed, Appellant could not return to his position as manager because he was restricted in his ability to lift items as he had previously been expected to do. The fact the paint store closed was not the cause of Appellant’s loss of earnings. Before Appellant’s injury, he had held two jobs, neither of which he was able to perform post-injury. The Court found substantial evidence in the record to support the conclusion the back injury resulted in a loss of earning capacity. In considering the vocational evaluation and Appellant’s actual employment, the hearing examiner decided to give greater weight to his actual employment. Determining the weight to be assigned to the evidence is the responsibility of the finder of fact. Applying the Chavez rationale in the instant case, it is clear that after a diligent search, Appellant was unable to find a job that paid a wage comparable to his pre-injury wage. Considering his actual post-injury wage, together with his physical limitations, the hearing examiner’s determination that Appellant’s earning capacity was reduced because of his work-related injury was supported by substantial evidence.

Reversed and remanded to the OAH for reinstatement of the order awarding benefits.

J. Kite delivered the order for the court.

Link to the case: http://tinyurl.com/r6n3c .