Summary 2007 WY 192

Summary of Decision issued December 11, 2007

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Case Name: Yother v. State

Citation: 2007 WY 192

Docket Number: S-07-0041

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge

Representing Appellant (Petitioner): David M. Gosar, Jackson, Wyoming.

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

Issues: Whether the order denying permanent partial disability benefits was supported by substantial evidence and/or was the decision arbitrary and capricious. Specifically, did the OAH err when it failed to consider Yother’s overtime earnings in its calculations, and consequently, mistakenly conclude that jobs were available paying a comparable amount to his pre-injury employment earnings. Whether the OAH erred as a matter of law when it concluded that Yother could return to work at a comparable wage to the wage he was earning at the time of injury.

Facts/Discussion: After sustaining a work related injury, Yother applied for worker’s compensation benefits. The Division awarded him medical, temporary total disability and impairment benefits. Later, after undergoing surgery, he applied for permanent partial disability benefits. The Division denied the claim. Yother had a hearing with OAH who affirmed the denial. He then appealed to the district court which also affirmed the denial.
Standard of Review: In an appeal from a district court’s decision on a petition for review of administrative action, the Court affords no deference to the district court’s decision and instead reviews the case as if it came directly from the agency.
The Court’s review of the record disclosed two difficulties with the hearing examiner’s findings and conclusions. The findings and conclusions do not explain why the hearing examiner disregarded Yother’s claim that he was earning $14.12 per hour at the time of his injury. Also, it appeared from the record that the hearing examiner’s finding that Yother was earning $12.25 per hour at the time of his injury was based on the vocational evaluator’s miscalculation.

Holding: The failure of any essential finding to be supported by substantial evidence results in an arbitrary and capricious decision and must be reversed. The Court has the authority to adjust factual findings based on the overwhelming evidence in the record and to correct errors of law. Based upon undisputed evidence in the record, the information received from the employer showed that Yother was earning $14.10 per hour rather than the $12.25 calculated by the vocational evaluator. Thus the hearing examiner’s conclusion that Yother failed to meet his burden of proving that no jobs were available at a comparable or higher wage was arbitrary and capricious and not supported by substantial evidence.

Reversed and remanded.

J. Kite delivered the opinion.

Link: http://tinyurl.com/3yld7x .