Summary 2013 WY 123

Summary of Decision October 9, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed and remanded.

Case Name: KEITH VOGT v. STATE OF WYOMING, ex rel., DEPARTMENT OF TRANSPORTATION

Docket Number: S-12-0283

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County the Honorable Peter G. Arnold, Judge

Representing Appellant: Bernard Q. Phelan, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General.

Date of Decision: October 9, 2013

Facts: Keith Vogt was stopped for failing to use his turn signal and subsequently arrested for driving while under the influence of a controlled substance (DUI) in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2009). He refused to submit to chemical testing. The Wyoming Department of Transportation (the State) notified him that his driver’s license would be suspended for six months. Mr. Vogt requested a hearing. After the hearing, the Office of Administrative Hearings (OAH) found there was probable cause for the arrest and upheld the suspension. Mr. Vogt appealed the ruling to the district court, which affirmed the OAH decision. He then appealed to this Court, claiming reasonable suspicion did not exist for detaining him beyond the scope of the initial traffic stop and the OAH ruling that probable cause existed to arrest him for DUI is contrary to the overwhelming weight of the evidence.

Issues: The issues for this Court’s determination are: 1. Whether reasonable suspicion existed to detain Mr. Vogt for field sobriety tests after he was stopped for a traffic violation; 2. Whether the OAH’s determination that probable cause existed to arrest Mr. Vogt for DUI was clearly contrary to the overwhelming weight of the evidence.

Holdings: The totality of the circumstances simply does not support the OAH’s conclusion that probable cause existed to arrest Mr. Vogt for driving while under the influence of alcohol or controlled substances. Particularly in light of the fact that the PBT was negative for alcohol and searches of Mr. Vogt’s vehicle and his person prior to his arrest produced no evidence of controlled substances, we conclude a prudent, reasonable and cautious police officer would not have arrested him for DUI. The OAH’s conclusion that probable cause existed to arrest Mr. Vogt for DUI was clearly contrary to the overwhelming weight of the evidence. We reverse and remand to the district court with directions to remand to the OAH for entry of an order reversing the driver’s license suspension.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 59

Summary of Decision May 13, 2013

Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: KARA WALTERS v. STATE OF WYOMING ex rel. WYOMING DEPARTMENT OF TRANSPORTATION

Docket Number: S-12-0213

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge

Representing Appellant: R. Michael Vang of Fleener & Vang LLC, Laramie, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Senior Assistant Attorney General.

Date of Decision: May 13, 2013

Facts: Appellant Kara Walters was charged with driving while under the influence (DWUI) in Laramie, Wyoming. The Wyoming Department of Transportation (WYDOT) suspended her driver’s license, and she requested an evidentiary hearing before the Office of Administrative Hearing (OAH). An OAH hearing examiner upheld the suspension against a challenge that she had not been properly advised as to implied consent. She then sought review of the administrative suspension in district court, where she also raised a number of constitutional challenges to a municipal criminal ordinance in addition to the claim that she had not been properly advised under the implied consent statute. The district court concluded that the constitutional issues before it had not and could not have been raised in the administrative hearing and that it therefore lacked jurisdiction to consider them, and that Walters had been properly advised as to implied consent.

Issues: 1. Did the arresting officer properly advise Ms. Walters as to implied consent as required by Wyoming Statute § 31-6-102(a)(ii) when she was under a municipal criminal ordinance?

2. Does this Court have jurisdiction to consider challenges to a municipal ordinance that were not and could not have been raised in a license suspension hearing?

Holdings: The hearing examiner correctly determined that Ms. Walters was properly advised as required by statute. Her other claims were not and could not have been presented in a license suspension proceeding. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 40

Summary of Decision April 4, 2013

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: LANA M. TEGELER v. STATE OF WYOMING, ex rel., WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0205

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge.

Representing Appellant: Donna D. Domonkos, Domonkos Law Office, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: April 4, 2013

Facts: Appellant, Lana Tegeler, challenged a decision from the Office of Administrative Hearings (OAH) denying her Motion to Reopen Case Persuant to W.R.C.P. 60(b). She sought review of that decision in district court and the district court affirmed. She appealed to this Court.

Issues: Ms. Tegeler presents the following issue:

Whether the Office of Administrative Hearing’s decision to deny Ms. Tegeler’s motion to reopen the case is arbitrary, capricious or otherwise not in accordance with the law.

The Division states the issue as follows:

Did the hearing examiner abuse his discretion in denying Ms. Tegeler’s motion seeking relief under W.R.C.P. 60(b)?

Holdings: Ms. Tegeler renewed her claim that relief is warranted under Rule 60(b) because the physical therapy record indicating that she experienced back pain following her workplace accident “was either mistakenly overlooked or inadvertently not relied upon by trial counsel.” Ms. Tegeler provided no evidence to support her claim that the failure to introduce the physical therapy record in question was caused by “mistake” or “inadvertence” on the part of her trial counsel. Further, the significance of the medical record to Ms. Tegeler’s claim for benefits relating to her lower back is not immediately apparent given that the medical record indicated that Ms. Tegeler experienced pain or an annoyance “in the middle and center of her back.” In light of these deficits in the record, the Court found no abuse of discretion in the OAH’s decision denying Ms. Tegeler’s motion. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 26

Summary of Decision March 6, 2013


Justice Burke delivered the opinion for the Court. Reversed and Remanded.

Case Name: STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION v. TIMOTHY SMITH

Docket Number: S-12-0169

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Natrona County, Honorable Catherine E. Wilking, Judge.

Representing Appellant: Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General; Amy M. Taheri, Special Assistant Attorney General.

Representing Appellee: Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.

Date of Decision: March 6, 2013

Facts: Appellant, Wyoming Workers’ Safety and Compensation Division, challenged an order from the Office of Administrative Hearings awarding additional temporary total disability (TTD) benefits to Appellee, Timothy Smith. The Division contended the award exceeded the maximum period for which an injured worker may receive temporary total disability benefits.

Issues: The Division presents a single issue:

Smith sustained a compensable neck injury and, despite four separate surgeries to address it, never returned to work. The Division paid Smith Temporary Total Disability benefits for thirty-six months – the maximum period allowed by Wyo. Stat. Ann. § 27-14-404(a) and the Division’s Rules. The OAH found that each of Smith’s four separate surgeries was a second compensable injury, extending the amount of time the Division could pay TTD benefits. Do Wyo. Stat. Ann § 27-14-404(a) and the Division’s Rules limit TTD benefits to a cumulative maximum of thirty-six months for injuries resulting from any one incident or accident regardless of the second compensable injury role?

Mr. Smith phrases the issue as follows:

Does a second compensable injury restart the limitation period for paying temporary total disability benefits under W.S. 27-14-404(a)?

Holdings: The Court found Wyo. Stat. Ann. § 27-14-404(a) and the Division’s rules to be unambiguous. Receipt of temporary total disability benefits is limited to a maximum period of thirty-six months, which includes twenty-four months authorized under Section 404(a) and an additional twelve months allowed in extraordinary circumstances pursuant to Division rules. Under the plain language of the statute, this limitation applies to all “injuries” resulting from “any one (1) incident or accident,” encompassing situations in which the claimant receives multiple injuries simultaneously or a subsequent compensable injury as a result of a single workplace accident. Because the Division awarded TTD benefits to Mr. Smith for a period of thirty-six months as a result of a single workplace accident, he is not entitled to receive additional TTD benefits. Reversed and remanded for entry of an order consistent with this opinion.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 23

Summary of Decision February 22, 2013


Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: NICOLLE HEIKKILA, AN EMPLOYEE OF SIGNAL MOUNTAIN LODGE v. SIGNAL MOUNTAIN LODGE

Docket Number: S-12-0137

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Teton County, Honorable Timothy C. Day, Judge.

Representing Appellant: Sky D. Phifer, Phifer Law Office, Lander, Wyoming

Representing Appellee: George Santini, Ross, Ross, & Santini, LLC, Cheyenne, Wyoming.

Date of Decision: February 22, 2013

Facts: The Wyoming Workers’ Safety and Compensation Division (Division) determined that Nicolle Heikkila, the appellant, suffered a compensable injury while employed by Signal Mountain Lodge. The lodge filed an objection to that determination and requested a hearing with the Office of Administrative Hearings (OAH). The appellant filed a motion to dismiss that objection on the grounds that the objection had been improperly filed. The OAH denied that motion and determined that the appellant had not suffered a compensable injury. The appellant filed a petition for review to the district court, arguing that her motion to dismiss was improperly denied. The district court affirmed the decision of the OAH.

Issues: Did Signal Mountain Lodge properly file an objection to the Division’s Final Determination of Compensability?

Holdings: Signal Mountain Lodge objected to the Division’s Final Determination of Compensability regarding an injury supposedly suffered by the appellant. The appellant argued that the objection was invalid because Signal Mountain Lodge is not a proper party to the action. The Court disagreed. Signal Mountain Lodge is the identified employer and paid the necessary contributions under the Act. The Court affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 161

Summary of Decision December 20, 2012


Justice Hill delivered the opinion for the Court. Affirmed.

Case Names: KYLE F. REGAN v. STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION

JOSEPH B. PARSONS v. STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION

Docket Numbers: S-12-0074; S-12-0075

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge.

Representing Appellants: R. Michael Vang of Fleener & Vang, LLC, Laramie, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Senior Assistant Attorney General.

Date of Decision: December 20, 2012

Facts: This opinion encompasses two separate appeals from two separate appellants, but both appeals challenged the implied consent advisement as affected by the same Laramie ordinance. While the appeals have not been consolidated, we join them for the purposes of opinion.

Kyle Regan and Joseph Parsons, in separate incidents, were both arrested for driving while under the influence (DWUI). Following their arrests, each appellant consented to chemical testing. Regan’s test showed that he had a 0.26 percent blood alcohol concentration, and Parsons’ test showed that he had a 0.16 percent blood alcohol concentration. Based on the test results, each appellant had his driver’s license administratively suspended. Each appellant likewise challenged the administrative suspension, claiming that his consent to chemical testing was invalid because he had been threatened with jail time under a local Laramie ordinance if he did not consent to the testing. In each case, the Office of Administrative Hearings (OAH) issued an order upholding the suspension, and each appellant appealed that order.

Issues: Regan and Parsons both present the same issues on appeal:

I. This matter should be stayed pending resolution of pending declaratory judgment action involving enforcement of Laramie Municipal Ordinance 1592.

II. [Were Appellants] read proper implied consent advisements after being arrested for a DWUI under Laramie Enrolled Ordinance 1592?

III. Does the creation of minimum mandatory jail time for an alleged refusal to submit to a chemical test under Laramie’s new DWUI constitute a “critical stage” for purposes of application of the Wyoming right to an attorney and distinguish the case from Mogard v. City of Laramie, 2001 WY 88, ¶¶ 26-31, 32 P.3d 313, 324-25 (Wyo. 2001)?

IV. Are Laramie’s new drinking and driving laws in conflict with State law and therefore preempted?

Holdings: The OAH ruled in accordance with law in determining that Regan and Parsons were given the statutorily required implied consent advisements, and it properly declined to rule on their remaining contentions as beyond the scope of the administrative proceeding and outside the jurisdiction of the OAH. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 160

Summary of Decision December 19, 2012

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Names: RAYMOND SANDOVAL v. STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION

STACEY NELSON v. STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION

STACEY L. NELSON and RAYMOND SANDOVAL v. CITY OF LARAMIE

Docket Numbers: S-12-0031; S-12-0032; S-12-0073

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge.

Representing Appellants in Case Nos. S-12-003, S-12-0032 and S-12-0073: R. Michael Vang of Fleener & Vang, LLC, Laramie, Wyoming.

Representing Appellee in Case Nos. S-12-0031 and S-12-0032: Gregory A. Phillips, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Senior Assistant Attorney General.

Representing Appellee in Case No. S-12-0073: David C. Clark, Laramie City Attorney, Laramie, Wyoming.

Date of Decision: December 19, 2012

Facts: This opinion encompasses three separate appeals that involve two appellants, but all challenged the same Laramie ordinance. While the appeals have not been consolidated, the Court joined them for the purpose of opinion. The appellants, Raymond Sandoval (Sandoval) and Stacey L. Nelson (Nelson), challenged the validity of Laramie Enrolled Ordinance 1592 in their contested case hearings regarding the suspension of their driver’s licenses before the Office of Administrative Hearings (OAH) and in a declaratory judgment action. The district court affirmed the suspension of their driver’s licenses and dismissed the petition for declaratory judgment, finding that the claims were not justiciable.

Issues: 1. Did the OAH hearing examiners err when they determined that the appellants were given the proper Wyoming Implied Consent Advisement and that further advisement regarding a Laramie municipal ordinance was not necessary?

2. Did the district court err when it dismissed the appellants’ petition for declaratory judgment after finding they did not raise a justiciable controversy?

Holdings: The OAH examiners appropriately found that Laramie Enrolled Ordinance 1592 did not change the nature of the advisements law enforcement officers are required to provide an individual pursuant to Wyoming’s implied consent statutes. Consequently, the OAH also properly upheld the appellants’ driver’s license suspensions. Additionally, the district court did not err when it dismissed the appellants’ petition for declaratory relief. The appellants failed to present the district court with a justiciable claim and the district court correctly concluded that the issues presented in the petition should have been brought in the appellants’ criminal proceedings. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 147

Summary of Decision November 20, 2012


Chief Justice Kite delivered the opinion for the Court. Reversed and Remanded.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: TYLER L. STALLMAN v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0087

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Niobrara County, Honorable Keith G. Kautz, Judge.

Representing Appellant: Brian J. Hunter of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: November 20, 2012

Facts: Tyler L. Stallman was injured in a car accident that occurred in the course of her employment. After receiving a 22% permanent partial impairment award from the Wyoming Worker’s Compensation Division (Division), she sought permanent partial disability (PPD) benefits. The Division denied her application stating that she had not complied with the statutory work search requirements. Ms. Stallman requested a contested case hearing. Both parties submitted motions for summary judgment. After a hearing, the Office of Administrative Hearings (OAH) concluded as a matter of law that Ms. Stallman had not timely submitted documentation showing she had sought work and granted summary judgment for the Division.

Ms. Stallman sought review in the district court, which affirmed the OAH’s ruling. She then appealed to this Court, claiming the OAH ruling granting the Division’s summary judgment motion was arbitrary, capricious and contrary to the evidence. Specifically, she asserted the Division improperly denied her application for benefits when she did not submit her work search documentation on the date it arbitrarily imposed – a date weeks before the statutory deadline for submitting her application. She contended the OAH erred in upholding the denial based upon its incorrect finding that she has failed to provide her work search documentation as required by Wyo. Stat. Ann. § 27-14-405(h)(iii) (LexisNexis 2011).

Issues: Ms. Stallman states the issues for this Court’s determination as follows:

I. Whether the decision by the Office of Administrative Hearings to grant the Wyoming Division of Workers’ Compensation’s Motion for Summary Judgment was arbitrary, capricious, not in accordance with the substantial evidence presented and contrary to Wyoming Statute.

II. Whether the decision by the Office of Administrative Hearings to deny Ms. Stallman’s Motion for Summary Judgment was arbitrary, capricious and contrary to Wyoming Statute.

The Division asserts the OAH properly granted its motion for summary judgment, Ms. Stallman did not timely submit her application with the required documentation and it was not estopped from denying her claim.

Holdings: The Court held that Ms. Stallman’s work search submission was timely. The Court further held that she was entitled to a hearing and the opportunity to present evidence showing that she actively sought work. The Court reversed the district court’s order affirming the OAH’s order granting the Division’s motion for summary judgment and remanded for proceedings consistent with this opinion.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 146

Summary of Decision November 20, 2012

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: TODD L. ROMSA v. STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION.

Docket Number: S-12-0005

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge.

Representing Appellant: R. Michael Vang of Fleener & Vang, LLC, Laramie, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; and Michael T. Kahler, Senior Assistant Attorney General.

Date of Decision: November 20, 2012

Facts: After being arrested for driving while under the influence (DWUI) in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2011), Todd L. Romsa submitted a request for contested case hearing before the Office of Administrative Hearings (OAH). Romsa asked the OAH to rule that the procedure used by the arresting officer to conduct the chemical breath test upon which his arrest was based did not comply with Wyo. Stat. Ann. § 31-6-105(a) (LexisNexis 2011) and, therefore, the proposed suspension of his driver’s license must be vacated. The OAH hearing examiner issued an Order Upholding Per Se Suspension on June 9, 2011. Romsa petitioned the district court to review the order of the OAH and on November 11, 2011, that court affirmed the OAH’s order. Romsa appealed the order of the district court.

Issues: Romsa presents two issues for our consideration:

I. It is improper for OAH to apply a presumption that the underlying chemical test result is valid where the certified record establishes a failure to comply with Wyoming Statute § 31-6-105(a).

II. If OAH is allowed to apply the presumption that a chemical test is valid, then [Romsa] should be allowed under Rule 12.08 of the Wyoming Rules of Appellate Procedure to provide evidence to rebut the arresting officer’s claims that he complied with Wyoming Statute § 31-6-105(a), where this evidence was not available to [Romsa] at the time of his implied consent administrative proceeding.

Holdings: The Court found that the certified record presented by the WYDOT at the administrative hearing established that the arresting officer performed the chemical analysis of Romsa’s breath “according to the methods approved by the department of health,” (specifically, Rules and Regulations for Chemical Analysis for Alcohol Testing, Ch. III, § 1(a)(i)), and as a result, it was proper for the OAH to apply a presumption that the underlying chemical test result was valid. § 31-6-105(a); Special Rules Relating to Driver’s Licenses, Ch. VI § 2(c).

Romsa did not present any evidence at the administrative hearing to rebut the presumption that the breath test results were accurate (Special Rules Relating to Driver’s Licenses, Ch. VI, § 2 (c)), and failed to meet the requirements of W.R.A.P. 12.08 that would allow this Court to “order the additional evidence to be taken before the agency.” Consequently, the Court affirmed the district court’s Order Affirming Per Se Suspension and affirmed the Order Upholding Per Se Suspension by the Office of Administrative Hearings.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 141

Summary of Decision November 2, 2012

Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: GORDON R. BILYEU, AN EMPLOYEE OF BABCOCK & WILCOX CONSTRUCTION, v. THE STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0051

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, Honorable Dan R. Price II, Judge

Representing Appellant (Plaintiff/Defendant): Andrew F. Sears of Murane & Bostwick, LLC, Casper, Wyoming

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General

Date of Decision: November 2, 2012

Facts: Gordon R. Bilyeu was injured in an accident while driving his motorcycle to work. He filed a claim for worker’s compensation benefits asserting that his injuries were covered because he sustained them while traveling to work and his employer reimbursed him for travel expenses. The Wyoming Worker’s Compensation Division (the Division) denied his claim. After a contested case hearing, the Office of Administrative Hearings (the OAH) also denied his claim. Mr. Bilyeu sought review of the OAH ruling in district court, which affirmed the denial. He appealed to this court claiming the OAH’s decision was contrary to the evidence because it ignored evidence showing that his employer reimbursed him for travel expenses.

Issues: The issue for this Court’s determination is whether the OAH’s conclusion that Mr. Bilyeu failed to meet his burden of proving he was reimbursed for travel expenses within the meaning of Wyo. Stat. Ann. § 27-14-102(a)(xi)(D) was contrary to the overwhelming weight of the evidence.

Holdings: The OAH’s conclusion that Mr. Bilyeu did not meet his burden of proving his employer reimbursed him for travel expenses was not contrary to the overwhelming weight of the evidence. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 117

Summary of Decision September 7, 2012

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: TODD ROGERS, AN EMPLOYEE OF R.A. MANNING CONSTRUCTION v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0001

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Teton County, Honorable Timothy C. Day, Judge.

Representing Appellant: Jack D. Edwards of Edwards Law Office, P.C., Etna, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; and Kelly Roseberry, Assistant Attorney General.

Date of Decision: September 7, 2012

Facts:  Todd Rogers challenged an order from the Office of Administrative Hearings (OAH) denying benefits to him for lower back treatment.  The OAH ruled that Rogers did not prove his 2010 condition was related to his 2002 work injury.  Affirmed.

Issues:  Rogers phrases his single issue as follows:

           

1.      Did the hearing examiner error [sic], as a matter of law, in concluding that Mr. Rogers failed to meet his burden of proof that his 2010 injuries are related to his 2002 work injury?

 

Holdings:  The evidence presented at the hearing, in light of the testimony presented and other facts in the record, supported the hearing examiner’s conclusion that Rogers did not meet his burden of proving that his 2010 treatment was the result of his 2002 work-related injuries.  The OAH decision was not against the overwhelming weight of the evidence and was, therefore, supported by substantial evidence in the record.  Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2011 WY 1

Summary of Decision January 4, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Bowen v. Wyo. Dep’t of Transp.

Citation: 2011 WY 1

Docket Number: S-10-0063

URL: http://tinyurl.com/22p97rn

Appeal from the District Court of Goshen County, The Honorable Keith G. Kautz, Judge

Representing Appellant (Petitioner): James A. Eddington of Jones & Eddington Law Offices, Torrington, Wyoming.

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Jackson M. Engels, Assistant Attorney General.

Date of Decision: January 4, 2011

Facts: Appellant’s drunken driving resulted in both a criminal prosecution for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2007), and an administrative license suspension proceeding, as mandated by Wyo. Stat. Ann. § 31-6-102 (LexisNexis 2007). In the criminal case, the appellant moved to suppress the breathalyzer evidence, alleging that the trooper performing the test was not properly trained on the device used to administer it. (The trooper used an updated version of the breathalyzer device.) The appellant’s motion was heard and denied by a decision letter dated April, 2009. The appellant entered a conditional guilty plea and Judgment and Sentence was entered in June of 2009. At the OAH contested case hearing, the appellant took the same position he had taken in the criminal case: the trooper was not properly trained on the breathalyzer device and thus the suspension was improper. Relying upon the circuit court’s previous finding in the criminal case that the trooper was properly certified to operate the device, the OAH upheld the suspension in their May, 2009 decision. The appellant sought review of both the OAH decision and the Judgment and Sentence in the criminal matter. After briefing by both parties, the district court entered its decision and order on appeal affirming the decisions in both the criminal and administrative proceedings.

Issues: Whether the appellant was collaterally estopped from relitigating the question of the admissibility of his breath test results in his administrative license suspension hearing after the circuit court had already decided that issue against him in a criminal proceeding.

Holdings: Only the administrative appeal was before the Court for review. The OAH’s determination was affirmed. The issue raised in the appeal was one of first impression for the Court. The Court was unable to find authority from any other jurisdiction addressing the particular factual scenario. Nevertheless, the Court found the application of collateral estoppel to these facts to be clear and straightforward: 1) the issue was identical in both proceedings: whether the trooper was properly trained to perform the breath test using the EC/IR II making the breath-test results admissible; 2) the circuit court’s determination that the trooper was properly trained and that the breath test was admissible was a final determination of that issue; 3) the appellant, the party against whom collateral estoppel was asserted, was a party to both proceedings; 4) finally, the prior criminal case afforded the appellant a full and fair opportunity to litigate the issue. Noting the limited nature of their decision in this matter, the Court concluded that the doctrine of collateral estoppel precluded the appellant from relitigating the question of whether his breath test results were legally obtained.

J. Voigt delivered the opinion for the court.

Summary 2010 WY 76

Summary of Decision issued June 9, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Taylor v. State, ex. Rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 76

Docket Number: S-09-0170

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Taylor: Donna D. Domonkos, Cheyenne, Wyoming.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Facts/Discussion: Taylor appealed the district court’s order affirming the Medical Commission’s (Commission) determination that he failed to meet his burden of proving his 2007 chiropractic treatment was related to a 1991 work related injury.

Taylor was injured in 1991 when he was emptying water buckets while working as a housekeeper for Hillhaven Nursing Home in Rock Springs. The Division concluded the injury was compensable and allowed payment of his medical claims including chiropractic care. The Division continued to pay for Taylor’s chiropractic treatments until 1998 when it denied some claims on the ground that the treatment was not related to his 1991 injury. The OAH held a contested case hearing and concluded that it was related and until further medical evidence would warrant a change, he was entitled to receive medical benefits for continuing chiropractic care. Taylor was involved in a number of accidents in 1999 and 2002. Taylor continued to receive treatment paid by the Division until 2007 when it denied further payments. The Commission ruled that Dr. Davidson was not a credible witness because he had a poor working knowledge of the mechanism of the 1991 injury and the prior care and treatment Taylor had received in the interim years. The Commission also considered the report of an independent medical evaluation which concluded the 2007 chiropractic treatment was not related to the 1991 injury.
Taylor asserted the Commission committed an error of law when it considered any evidence that was or could have been presented at the 1998 contested case hearing. He claimed that collateral estoppel barred consideration of such evidence. The issue determined in 1998 was whether Taylor’s chiropractic treatment was related to the 1991 work injury. Since the Commission did not re-analyze the propriety of the 1998 contested case ruling, the issues were not identical and collateral estoppel did not bar the Commission from considering any of the evidence presented at the hearing. The records showed that the intervening accidents affected the same areas of the body as were being treated by Dr. Davidson.

Conclusion: Dr. Davidson was the only medical provider who provided evidence relating Taylor’s 2007 chiropractic treatment to his original injury. The Commission rejected the doctor’s opinion because he had an insufficient understanding of the original injury and the intervening events. Moreover, in direct contradiction of Davidson’s testimony that he only treated the areas of the original injury, Taylor testified that Davidson actually treated his whole spine, both shoulders and hips. Taylor does not contest any of the Commission’s findings of fact about the intervening injuries and Davidson’s credibility. Those aspects of the Commission’s decision, without reference to Taylor’s preexisting condition, are sufficient to uphold its decision.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/294ycog .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2009 WY 118

Summary of Decision issued September 24, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Jacobs v. State, ex rel., Wyo. Workers’ Safety and Comp. Div.

Citation: 2009 WY 118

Docket Number: S-08-0255

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.

Representing Appellant Jacobs: Bill G. Hibbler of Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Facts/Discussion: Jacobs injured his toe in a work-related accident in 1982. He received workers’ compensation benefits for a number of conditions related to the accident for many years including payment for treatment of chronic abdominal pain. In 2003, the Division entered a Final Determination denying further benefits for chronic abdominal pain. Jacobs challenged that action and the OAH determined that the claim was barred by the doctrine of collateral estoppel.

Claim barred under doctrine of collateral estoppel: Collateral estoppel applies in the administrative context. The Court considers four factors: whether the issue decided in the prior adjudication was identical with the issue presented in the present action; whether the prior adjudication resulted in a judgment on the merits; whether the party against whom collateral estoppel is asserted was a party or in privity; and whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. The Court stated it was clear that no prior adjudication had resulted in a judgment on the merits. The Court’s affirmance in Jacobs II sustained the denial of benefits for the knee and lung claims but allowed that benefits for Jacobs’ chronic abdominal pain had not been denied and no decision determining that issue had been formalized.
OAH jurisdiction: Jacobs asserted that the availability of benefits should have been determined under § 27-14-605, which governs modification of benefits previously awarded. The Court stated that the Division’s Final Determination denying benefits was not an effort to modify benefits relating to the original toe injury or retract or modify the previously-uncontested benefits paid in relation to the chronic abdominal pain. Instead, the Final Determination dealt with a new claim and was a separate administrative determination.

Conclusion: After reviewing the record on appeal, the Court was unable to say that a final decision was ever entered determining that Jacobs’ chronic abdominal pain was or was not, causally related to this original, compensable injury. Thus the OAH’s conclusion that Jacobs’ was estopped from raising the claim for benefits was not in accord with the law. The Court found that collateral estoppel does not preclude the Division from determining the compensability of benefits for the chronic abdominal pain. Finally, because the Division was not modifying an award of benefits, its denial of benefits was not subject to the requirements of § 27-14-605.

Reversed and remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ycyflkq .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 57

Summary of Decision issued April 21, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Williams v. State ex rel., Wyoming Workers’ Safety & Comp. Div.

Citation: 2009 WY 57

Docket Number: S-08-0034

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Williams: Donal J. Sullivan of Sullivan Law Offices, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; J.C. Demers, Special Assistant Attorney General.

Representing Amicus Curiae Watchtower Bible and Tract Society of New York, Inc.: Paul D. Polidoro and Keturah A. Dunne, Associate General Counsel, Patterson, New York; Diana Sampson Rhodes of Rhodes Law Firm, LLC, Cheyenne, Wyoming.

Facts/Discussion: Sharon Williams sought worker’s compensation death benefits as the surviving spouse of Howard Williams who died from injuries suffered in a work-related car accident. The Division denied the claim on the basis that Mr. Williams refused reasonable and necessary medical treatment. The OAH also denied benefits stating that Mr. Williams had forfeited all right to benefits when he refused to allow the use of blood products to treat his injuries because of his religious beliefs.

Constitutionality of § 27-14-407: Procedurally, Mrs. Williams is barred from raising the constitutional claim in the context of the case because administrative agencies have no authority to determine the constitutionality of a statute. Neither the district court nor the Supreme Court has jurisdiction on appeal of an agency action to consider it.

Substantial evidence: The decisive question was whether the hearing examiner’s determination that Mr. Williams’ decisions ran afoul of § 27-14-407 was supported by substantial evidence viewed in light of the record as a whole. The Court found the record evidence did not adequately support such a determination. The statute established two forms of conduct by which a claimant forfeits compensation: if a claimant engages or persists in an unsanitary or injurious practice which tends to imperil or retard his recovery or second, if a claimant refuses to submit to medical or surgical treatment reasonably essential to promote his recovery. In the instant case, the hearing examiner determined Mr. Williams had engaged in both forms by his refusal to allow the use of blood products to treat his lacerated spleen. The Court disagreed noting that the critical evidence consisted of the Doctor’s testimony in which she repeatedly stated that she could not say whether Mr. Williams would have survived had blood products been transfused.

Conclusion: The constitutionality of §27-14-407 was not properly before the Court. As for the evidentiary issue; the Division needed to present positive evidence that Mr. Williams failed to survive because of his refusal to accept foreign blood products. It did not do so. The determination granting forfeiture of benefits was reversed. The Case was remanded to the district court with instructions to reverse the order of the OAH and enter the order that the Division award the applicable death benefits to Mrs. Williams.

Reversed and remanded.

J. Golden delivered the decision.

C.J. Voigt dissented: The Justice stated that the underlying facts were not in dispute and there was not even a question as to whether the employee refused to submit to medical or surgical treatment. The only question was whether the treatment he refused was reasonably essential to promote his recovery. While the treating physician was not willing to say that the employee’s refusal to accept blood products and his delay of surgery until his son’s arrival, were the difference between life and death, she said everything short of that. The statutory test established by the legislature was not whether the refused treatment would have saved the employees life but rather whether the treatment was reasonably essential to promote his recovery.

Link: http://tinyurl.com/cu9hcd .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 42

Summary of Decision issued March 25, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Greene, D.C. v. State, ex rel., Board of Chiropractic Examiners

Citation: 2009 WY 42

Docket Number: S-08-0137

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.

Representing Appellant Greene: Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General; Kennard F. Nelson, Senior Assistant Attorney General.

Facts/Discussion: Two patients of licensed chiropractor Greene filed complaints against him with the Wyoming Board of Chiropractic Examiners (Board). Following a contested case hearing, the Board entered an order dismissing one of the complaints and indefinitely suspending Greene’s license to practice based on the second complaint.

Evidentiary Error: Mental Health Records: Dr. Greene attempted to obtain copies of the complainant SS's mental health records. Following a hearing, the OAH examiner found that the information sought was protected by privilege and did not fall within any exception. For the exception in § 33-27-123(a)(iii) to apply, a patient must allege mental or emotional damages in litigation and SS did not do so. Rather, she was a witness in an administrative licensing proceeding before the Board and no damages were recoverable.
Lack of Notice: Dr. Greene relied on Slagle which stands for the principle that a licensing board may not consider in a contested case hearing matters concerning allegations of which the licensee has not been given notice. The Court stated that the letter of intent and notice of hearing clearly notified Dr. Greene of the allegations giving rise to the disciplinary action. From documentation provided in discovery, he had notice of specific witness statements. From the record, the Court noted there was no question that Dr. Greene had notice of the conduct and violations being alleged against him and the matter the Board considered at the hearing.
Non-complaining Witness Testimony: Dr. Greene asserted the Board erred in allowing a non-complaining witness to testify. The Court noted no such requirement in the statute or rule. There is no requirement that a patient having information relevant to proceedings against a chiropractor brought by another patient must file a complaint. Administrative hearings are governed by WAPA and administrative agencies acting in a judicial or quasi judicial capacity are not bound by the rules of evidence that govern trials by courts or juries. The standard for admissibility of evidence at an administrative hearing is contained in § 16-3-108(a). The Board did not abuse its discretion in allowing the testimony because it concerned an alleged incident 20 years before the complaints giving rise to the disciplinary proceeding. Whether testimony should be excluded is a discretionary decision for the agency.
Mr. Blanchard’s Testimony: Blanchard, a licensed professional counselor, testified on Dr. Greene’s behalf. Dr. Greene argued that the Board did not mention all the testimony from Blanchard. As the trier of fact, the Board was entitled to give Blanchard’s testimony the weight it concluded it deserved in light of other evidence presented.
Licensing Records of Dr. Greene’s Experts: After reviewing the record, the Court concluded that neither the Board nor the OAH committed any evidentiary error with respect to Dr. Greene’s expert witnesses’ licensing records. The hearing examiner properly declined to admit the records into evidence, the State’s questions to Dr. Blanchard concerned information found in his C.V. and with only one exception, the State’s questions to Dr. Brown likewise did not require his licensing records. While confidential records may have been improperly obtained, they were not admitted into evidence for consideration by the board. The Court noted their concern about the State’s effort to use information concerning Dr. Brown from the Board of Chiropractic Examiners’ file. Without the consent of Dr. Brown or a court order, the assistant attorney general was not authorized to obtain and the Board was not authorized to release confidential information from the file.
Sufficiency of the Evidence: In its findings, the Board specifically found that the witnesses were credible and the statements they gave during the investigation were consistent with their hearing testimony. In contrast, the Board found that Dr. Greene’s testimony concerning events was sometimes not supported by his notes on patient charts. The Board also found that Dr. Greene’s statements during the investigation were sometimes different than his hearing testimony and his testimony on cross sometimes contradicted his direct examination testimony.

Conclusion: Having reviewed the record, the Court held that clear and convincing evidence was presented which would persuade the Board that the contentions that Dr. Greene acted improperly and violated the Board Rules and ethical standards was highly probable.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/djmcxk .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 117

Summary of Decision issued October 7, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Bush v. State, ex rel., Wyoming Workers’ Safety & Comp. Div.

Citation: 2008 WY 117

Docket Number: S-07-0226

Appeal from the District Court of Fremont County, the Honorable Norman E. Young, Judge.

Representing Appellant Bush: David M. Gosar of Jackson, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Facts/Discussion: This was an appeal from the district court’s affirmance of an Order of the Office of Administrative Hearings (OAH) denying the appellant’s claim for worker’s compensation benefits.

Timeliness: Wyoming statutes provide that an injured employee must report their injury to the employer within 72 hours after the injury becomes apparent and to the Division within ten days. Failure to comply results in a presumption that the claim shall be denied unless the employee can show clear and convincing evidence that the delay did not prejudice the employer or the Division in their investigation. In its first Order Denying Benefits, the OAH found that the appellant did not timely report. That Order was vacated by the Court’s decision in Bush I. In the second go-round, the hearing examiner entered a more fully detailed Order in which benefits were denied solely based upon the conclusion that the appellant had not met his burden of proving that the injury was work-related. The Division contended that the issue of timeliness had survived but the Court did not agree. Because untimely reporting and filing create only an evidentiary presumption, rather than a lack of subject matter jurisdiction, the Court did not need to raise or consider the issue. The Court determined that if the issue did survive the first go-round, the Division waived it below in the second go-round.
Substantial Evidence: The question was whether the appellant proved that his injury occurred at work. The hearing examiner characterized the conflict in the evidence as a credibility contest. The Court stated that the overwhelming weight of the evidence did not support the appellant’s version of events. The Court found that substantial evidence in the record supported the conclusion that the appellant did not prove that the injury occurred at work on July 3.

Holding: The issues of the timeliness of the appellant’s reporting of his alleged work injury to his employer and the timeliness of his filing of an injury report with the Division played no part in the hearing officer’s decision in the case and were waived below by the Division. The hearing officer’s determination that the appellant did not prove that his injury was work-related was supported by substantial evidence.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/4q664n

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 124

Summary of Decision issued August 3, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Huntington v. State of Wyoming, ex rel., Wyoming Workers’ Compensation Division

Citation: 2007 WY 124

Docket Number: 06-237

Appeal from the District Court of Uinta County, Honorable Dennis L. Sanderson, Judge

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

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

Date of Decision: August 3, 2007

Issue: Whether the OAH acted arbitrarily and capriciously when it denied benefits for the continued deterioration of appellant’s back.

Facts/Discussion: A claimant in a workers’ compensation case must prove all elements of his or her claim for benefits by a preponderance of the evidence. For purposes of workers’ compensation, Wyo. Stat. Ann. 27-14-102(a)(xi) defines “injury”.
A causal connection exists between a claimant’s injury and his or her employment when there is a nexus between the injury and some condition, activity, environment or requirement of the employment. The causal connection between an accident or condition at the workplace is satisfied if the medical expert testifies that it is more probable than not that the work contributed in a material fashion to the precipitation, aggravation or acceleration of the injury. A standard of reasonable medical certainty with respect to such causal connection is not invoked. Testimony by the medical expert to the effect that the injury “most likely,” “contributed to,” or “probably” is the product of the workplace suffices under the established standard.
In the present action, the OAH found the Appellant’s expert’s opinion unpersuasive since it failed to take some of Appellant’s activities after the workplace back injury into account in reaching his conclusions about whether the Appellant’s present condition was a direct result of that injury. Against advice, appellant admittedly obtained one job that required some lifting and another that required him to stand on a hard floor that bothered his back. Further, the appellant subsequently suffered two additional injuries that required medical attention. An “unreasonable or not adequately supported” opinion is grounds for disregarding a medical opinion. Thus, the OAH could correctly conclude that, faced with the evidence of other potential causes for the appellant’s increasing back pain, the appellant had not met his burden of proving that the earlier workplace injury caused his current condition because the appellant’s medical reports did not attempt to determine the contribution that the subsequent injuries and work history had on the appellant’s condition. The evidence submitted did not acknowledge the existence of the subsequent work history or accidents.

Holdings: The OAH did not act arbitrarily or capriciously in denying the appellant worker’s compensation benefits in the instant case because the appellant’s medical evidence failed to address the impact that working against medical advice and subsequent injuries had on the appellant’s medical condition. Absent such evidence, the appellant failed to meet his burden of proving the essential element of causation.

Affirmed.

C.J. Voigt delivered the opinion for the court.

Link: http://tinyurl.com/2pt5nz .

Summary 2007 WY 108

Summary of Decision issued July 12, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: McIntosh v. State, ex rel, Wyoming Medical Commission and Wyoming Workers’ Safety and Compensation Division

Citation: 2007 WY 108

Docket Number: 06-113

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellant (Petitioner): Bill G. Hibbler of Bill G. Hibbler, PC, Cheyenne, Wyoming.

Representing Appellee (Respondents): Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steve Czoschke, Senior Assistant Attorney General; Keith J. Dodson, Legal Intern. Argument by Mr. Dodson.

Issues: Whether the Medical Commission order is supported by substantial evidence. Whether the Medical Commission order is contrary to law because Worker’s Compensation Division failed to comply with Wyo. Stat. § 27-17-605(a). Whether the Medical Commission order is contrary to law because it determined a non-medically contested issue concerning the application of Wyo. Stat. § 27-14-605(a). Whether the Medical Commission panel abused its discretion in failing to consider the testimony of the claims analyst.

Facts/Discussion: Appellant filed a claim for benefits with the Division alleging he had suffered a back injury at work. The Division determined his injury to be an aggravation of a pre-existing condition and awarded him benefits. Several months later, the Division determined that Appellant’s condition was pre-existing and declined further benefit payments. Appellant requested a hearing and the Division referred the case to the OAH. The OAH transferred the case to the Medical Commission. After a hearing the Commission issued an order upholding the denial of benefits. Appellant appealed to the district court which also upheld the appeal.
Standard of Review: In an appeal from a district court decision on a petition for review of administrative action, the Court reviews the case as if it came directly from the agency.
Sufficiency of the Evidence: The Court reviewed the evidence in the record and concluded the Commission’s findings of fact and conclusions of law were supported by substantial evidence presented at the hearing. The Court reached a similar conclusion with respect to Appellant’s claim that the Commission improperly disregarded Dr. Beer’s testimony. The Court weighed Dr. Beer’s testimony against Appellant’s inconsistent reports concerning his back problems. They also considered a written report from John Bender, O.D. who reviewed the file. It was apparent the Commission fully considered Dr. Beer’s testimony and reasonably concluded his opinions were based on incomplete and incorrect information.
Medical Commission Authority to Decide this Case (a) the Commission’s authority to decide this case after the Division initially awarded benefits and then denied benefits: The Division’s uncontested award of benefits to Appellant in November did not preclude the Division from challenging the payment of future benefits in April. The Division did not contest the compensability of Appellant’s original claim or seek to retract payments already made. The Division challenged his right to payment of future benefits. Therefore, § 27-14-605 was not applicable and Appellant was required to prove that he was entitled to receive benefits for his unpaid claims despite the previous award. The Commission had authority to decide the contested case and properly allocated the burden of proof.
b) the Commission’s authority to decide this medically contested case: Looking at the plain and ordinary meaning of the language, it was clear the Division was required to refer medically contested cases to the Commission for hearing and the Division’s decision in that regard was not subject to challenge at the administrative level. Once the Division has referred a case, the Commission has jurisdiction to decide all issues related to those identified in the hearing request. In the instant case, the Division referred the case to the OAH which then transferred the case to the Commission. The record does not reflect whether the OAH obtained the parties’ agreement before transferring the case to the Commission. Appellant’s case was transferred as a “medically contested case.” The Court reviewed the language of the administrative rules and concluded that the definition allowed for referral to the Commission cases that primarily involved medically contested issues including but not limited to those identified in subsections (A) through (D) of the rule. Conflicting medical testimony requiring the application of medical judgment to complex medical facts was presented at the hearing on the primary medical issue of whether Appellant’s back problems resulted from normal degeneration or became symptomatic as a result of work injury. The fact that the Commission may also be asked to consider non-medical issues does not deprive it of authority to decide the case. So long as the primary issue for determination was the medically contested issue of whether Appellant’s back problems were caused by a work-related injury, the Commission had authority to decide the case.
Failure to Consider Testimony: The Court found no error in the Commission’s decision not to consider testimony. The Commission concluded that when a case is referred from a contested hearing, it becomes its responsibility to independently determine the issues presented. The primary issue was whether his injury was causally related to his work. The Commission allowed the testimony and then determined the testimony was not relevant to its determination of the issue.

Holding: The Commission’s order was supported by substantial evidence and was not arbitrary and capricious. The Commission had authority to decide this medically contested case. Section 27-14-605 did not apply to these proceedings. The Commission did not err in declining to consider the Division’s reasons for discontinuing benefits and making its own independent decision concerning causation based upon Appellant’s testimony and the medical evidence presented at the hearing.

Affirmed.

J. Kite delivered the decision.

J. Golden, dissenting which C.J. Voigt joined: The Justices dissented because they did not believe the Commission had jurisdiction to decide the case. The case contained no medically contested issues and was not properly referred to the Commission.
Prior to the hearing, Appellant questioned the burden of proof which is a question of law. The Commission does not possess the expertise to answer questions of law. The Justices suggested the legal question was primary and therefore placed jurisdiction with the OAH and not the Commission.
The Justices were also concerned about the process by which the case was referred to the Commission. Once referred, the Commission must evaluate on a continuing basis to ensure the issue involved is primarily a medically contested issue. If it appears it is not, the Commission must return the case to the Division. Although administrative review is not available to the parties to challenge the Division’s referral, that does not remove the statutory restraints on the Commission’s subject matter jurisdiction.
The record contained no indication that prior to the referral the parties were contacted or consented to the same. The Justices believed this rendered the referral void. They disagreed that silence on the record equaled consent. The referral order should state that the OAH has received consent or it exceeds its statutory authority in referring the case. A case should only go before the Commission when it is a medically contested case. Here, the nature of the injury was not determinative of whether or not the injury was work-related. The medical expertise of the panel was not required and should never have been invoked.

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