Summary 2006 WY 67

Summary of Decision issued May 31, 2006

[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 and we will provide assistance.]

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

Case Name: Board of Professional Responsibility, WY State Bar v. Ken M. McLaughlin

Citation: 2006 WY 67

Docket Number: D-05-3

Order Suspending Attorney From the Practice of Law

The matter came before the Court upon a “Report and Recommendation to the Wyoming Supreme Court,” filed on May 16, 2006, by the Board of Professional Responsibility for the Wyoming State Bar. After a careful review of the Board of Professional Responsibility’s Report and Recommendation, the materials attached, the Respondent’s Section 16 Affidavit, the Affidavit of Costs and Expenses, and the remainder of the file, the Court found that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that the Respondent Ken M. McLaughlin should be suspended from the practice of law for a period of one years, retroactive to September 21, 2005.

C.J. Hill.

Link to the order: http://tinyurl.com/njgd7 .

The full record with attachments will be available in the database at a later date.

Summary 2006 WY 66

Summary of Decision issued May 31, 2006

[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 for assistance.]

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

Case Name: Hirsch v. State

Citation: 2006 WY 66

Docket Number: 05-20

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina Kerin, Senior Assistant Appellate Counsel; and Wade Redmon, Student Intern. Argument by Mr. Redmon.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Senior Assistant Attorney General. Argument by Mr. Delicath.

Date of Decision: May 31, 2006

Issue: Whether the admission by Appellant that he performed oral sex on his twelve year old victim contemporaneous to his guilty plea, provides the factual basis required by Wyoming Rule of Criminal Procedure 11(f). Whether the trial court’s denial of Appellant’s motion to withdraw his guilty plea was an abuse of discretion. Whether the trial court’s election to sentence Appellant without a psychosexual evaluation was an abuse of discretion. Whether the trial court’s consideration of Appellant’s non-charged conduct in its sentencing decision constituted plain error.

Holding: Hirsch was sentenced to a term of thirteen and a half to fifteen years for one count of third degree sexual assault.
Factual Basis for Plea: In the context of circumstances prohibited under the third degree sexual assault statute, the distinction Appellant attempts to draw between a situation in which an actor initiates sexual relations with a victim and one in which the relationship was initiated by the victim, as is alleged here, is one with no legal difference because sexual intercourse is without consent when for any reason, the victim is not in a position to exercise independent judgment abut the matter. The third degree sexual assault statute provides an age of consent of sixteen and the victim was twelve at the time. Since the acts were legally nonconsensual, a reasonable inference could be drawn from the facts admitted by Appellant that the acts were “inflicted” upon the victim as that term is used in the definition proffered by Appellant.
Denial of Motion to Withdraw Plea: The Court reviewed the seven factors suggested as pertinent by Frame v. State which include: (1) whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (3) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. Appellant’s argument was predicated on an allegation of ineffective assistance of counsel. Appellant must demonstrate on the record that counsel’s performance was deficient and that prejudice resulted. The Court considered the first, fifth and sixth factors from Frame as they applied to the instant case. The first factor was rejected because Appellant at no time asserted innocence. The fifth factor asks if close assistance of counsel was present and Appellant failed to make the requisite showing. The Court’s review of the record confirmed that the sixth factor was complied with, showing that the plea was voluntary and knowing.
Psychosexual Evaluation: The Court’s review of the record led them to conclude that the district court did not abuse its discretion and that Appellant failed to demonstrate prejudice. Eight months elapsed between the court’s order for evaluation and the sentencing hearing. Appellant did not bring up the question of his inability to pay for the evaluation until sentencing. Also, the Court stated that Appellant failed to establish any prejudice arising from the district court’s decision. The burden was on Appellant to demonstrate prejudice.
Consideration of Uncharged Conduct Evidence in Sentencing: Historically, trial courts have been granted broad discretion to consider a wide range of factors about the defendant and his crimes when imposing sentence. Appellant did not object to consideration of the uncharged conduct in the presentence investigation report. This means that application of the plain error standard was triggered. The Court stated that Appellant could not establish the second prong of that test by showing transgression of a clear and unequivocal rule of law. Without a showing of prejudice, Appellant was not entitled a new sentencing hearing.

The Court affirmed.

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

Link to the case: http://tinyurl.com/pdmb7 .

Summary 2006 WY 65

Summary of Decision issued May 31, 2006

[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 for assistance.]

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

Case Name: In the Matter of Worker’s Compensation Claim of: Rodgers v. State, ex rel, Workers’ Safety and Compensation Division

Citation: 2006 WY 65

Docket Number: 05-144

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

Representing Appellant (Employee/Claimant): Kirk A. Morgan of Gage & Moxley, PC, Cheyenne, Wyoming.

Representing Appellee (Objector/Defendant): 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. Argument by Ms. Radosevich.

Date of Decision: May 31, 2006

Issue: Whether substantial evidence supports the Medical Commission’s decision denying workers’ compensation benefits to Appellant. Whether the Medical Commission properly evaluated conflicting medical evidence and set out findings of fact which indicated which evidence the Medical Commission considered probative.

Holding: Appellant suffered a work-related back injury on December 27, 1983 and since then has undergone twenty-one failed back and neck surgeries. His chronic pain has been treated with numerous narcotic and non-narcotic medications. From March 1997 through April 2000, Appellant began consultation and received treatment for abdominal pain which eventually led to findings including internal hemorrhoids, diverticulosis, ileus and/or non-mechanical gastric outlet obstruction resulting from narcotic medications, a normal esophagus, mild erosive gastritis and a single acute ulcer caused by aspirin in the Fiorinal being taken. In May 2001, an upper GI series and pharyngogram showed no evidence of any stricture, mass or ulceration in the esophagus. In October 2002, he was diagnosed by Dr. Kuckel with further problems secondary to a Helicobacter pylori (H. pylori) infection and at each visit the doctor repeated his diagnosis that Appellant suffered from an esophageal stricture secondary to reflux and gastroparesis secondary to his chronic use of pain medication. In May 2003, the Division issued a Final Determination denying benefits for Appellant’s gastrointestinal disorders stating that on the results of the Independent Medical Examination the treatment for the gastrointestinal disorders was not related to the 1983 back injury. The Medical Commission concluded that the care and treatment provided to Appellant through August 2002 was covered and that the esophageal stricture beginning in October 2002 was not related to the work injury of 1983 and therefore not compensable.
A worker’s compensation claimant has the burden of proving every essential element of his claim by a preponderance of the evidence. When the Court reviews an administrative agency order, they do so as if the case came directly from the agency. In appeals where both parties to a contested case submit evidence, appellate review of the evidence is limited to the application of the substantial evidence test. Even if the agency record contains sufficient evidence to support the administrative decision under the substantial evidence test, the Court applies the arbitrary and capricious standard as a “safety net” to catch other agency action that may have violated the Wyoming Administrative Procedures Act (Wyoming APA).
Findings of Fact: The Court found that the Medical Commission’s decision in the instant case ran afoul of the Wyoming APA because it failed to weigh all of the material evidence offered by the parties, it made ultimate findings of fact unsupported by any basic findings and it improperly took judicial notice of a contested fact.
Medical Commission’s Decision as Arbitrary and Capricious: The Court felt justified in taking the rare step of overturning the fact finder’s determination of the weight to be given a medical opinion and reversed with the directions to enter an order awarding benefits. The Court held that the Medical Commission’s decision to deny benefits was arbitrary and capricious because it was based on inaccurate findings of fact and is contrary to the overwhelming weight of the evidence. Because the medical history was incomplete and included flawed assumptions on which Dr. Perakos (the Independent Medical Examiner) based his opinion, the Court found the Medical Commission arbitrary and capricious.
The Medical Commission accepted the opinion of Dr. Kuckel as persuasive but then misstated the opinion. Based on Dr. Kuckel’s opinion, Appellant’s use of narcotic pain medications to treat his chronic back pain caused his gastrointestinal problems which caused his esophageal stricture. Only a “small portion” of Rodgers’ condition was related to the presence of H. pylori which all parties agreed was not related to the pain medications.

The Court reversed and remanded with directions to vacate the order denying benefits. The district court is to remand to the Medical Commission for entry of an order awarding benefits for the diagnosis and treatment of Appellant’s’ gastrointestinal problems and esophageal stricture, with the exception of costs related solely to the treatment for the presence of H. pylori.

J. Golden delivered the opinion for the court.

Link to the case: http://tinyurl.com/ooq5v .

Summary 2006 WY 64

[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 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 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: Sanchez v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division

Citation: 2006 WY 64

Docket Number: 05-204

Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Petitioner): Michael H. Schilling of Schilling & Winn, Laramie, 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: May 26, 2006

Issues: Whether the Medical Commission's finding that Appellant's symptoms were not causally related to her employment was supported by substantial evidence. Whether the Medical Commission's actions were arbitrary and capricious.

Holdings: When an injury arises over time, a Appellant's burden of proof is enhanced by Wyo. Stat. 27-14-603(a) (2005). Although the statute specifically enumerates five elements which need to be established, they are closely related because each contributes to indicate whether the employment environment caused the injury. Therefore, the same evidence will often offer support to several of the elements. The test is whether a Appellant has shown a causal connection between the injury and the employment. In the present action, two experts testified at the contested case hearing as to the casual connection between Appellant's injury and her employment. When faced with deciding between the conclusions of two medical experts, the fact-finder must consider: (1) the opinion given; (2) the reasons for the opinion; (3) the strength of the opinion; and (4) the qualifications and credibility of the individual giving it. The Medical Commission determined that one expert's conclusion could not be relied upon because he had not inquired sufficiently into the Appellant's job duties, the frequency of heavy lifting, or into her non-work-related leisure activities that could have caused her symptoms. In contrast, the testimony of the other physician expert based his opinion on a review of the Appellant's entire medical file and he determined that her symptoms did not appear to be work-related. While the Commission could have come to other conclusions based on the evidence presented, the appropriate standard of review requires acceptance of the Commission's conclusions if they are supported by substantial evidence. In this case, it appears that a reasonable mind could accept the conclusions of one expert over the other and, therefore, the Commission's findings are affirmed..

There are a variety of ways in which an agency's actions can be arbitrary and capricious. An exclusive list of arbitrary and capricious actions has never been created. However, the Appellant has not attempted to analogize the actions of the Commission or the Division to any previous case law, and has further failed to demonstrate how the absence of "legislation, rules, and regulations" specifically dealing with her condition is otherwise arbitrary and capricious. Because the Appellant's argument is not supported by citation to pertinent authority and merely references her closing argument, but not factual evidence contained in the record, it must fail.

The Commission's conclusion that the Appellant's injury was not causally related to her employment is supported by substantial evidence. Further, the Appellant has not demonstrated that the Commission's decision was otherwise arbitrary and capricious.

Affirmed.

J. Voigt delivered the opinion for the court.

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Summary 2006 WY 63

[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 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 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: State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division v. Madeley

Citation: 2006 WY 63

Docket Number: 05-167

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

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

Representing Appellee (Employee/Claimant/Petitioner): Christopher S. Leigh, Jackson, Wyoming

Date of Decision: May 19, 2006

Issues: Whether the hearing examiner's decision that Appellee failed to prove he is entitled to permanent partial disability benefits was arbitrary or capricious. Whether the hearing examiner's decision that Appellee's loss of earning capacity is attributable to a non-work related cardiac condition, and also due to economic factors, is in accordance with law.

Holdings: The Order denying benefits is facially insufficient to permit appellate review. A hearing officer must do more than state an ultimate fact or conclusion; he must thoroughly explain each ultimate fact or conclusion in order for an appellate court to determine upon what basis each ultimate fact or conclusion was reached. In the instant case, the hearing officer failed to provide a sufficient explanation as to why he denied benefits. Therefore, the hearing officer's findings of facts and conclusions are wholly inadequate to permit effective appellate review of the Order denying benefits. The district court had before it insufficient information by which it could review the merits of the hearing officer's determination and, consequently, its decision is reversed. The case is remanded to the district court with directions to vacate the Order denying Appellee benefits for partial permanent disability. The district court is directed to remand the case for supplemental findings of fact and conclusions of law or other proceedings consistent with this opinion.

J. Golden delivered the opinion for the court.

J. Hill filed a dissenting opinion. The findings made by the hearing examiner are, in some respects, in error but are sufficient given the record in this case. The district court was correct in reversing the hearing examiner's order and directing that the Division award benefits. It is the appellant's burden to bring a complete record to this Court. Where a proper record is not provided, an appeal may be dismissed or review may be limited to those issues not requiring inspection of the record. Although that rule is more often applied in appeals coming directly to this Court from a trial court, there is no reason that it should not apply equally in these circumstances where the appeal comes to us from a district court sitting as an intermediate court of appeals. The entire record was before the district court for its consideration. However, when the Division filed its designation of record in this case, it chose to designate mainly those portions of the record which were favorable to its position in this appeal. Resolution of the issues raised in this appeal requires that we have before us the complete agency record. For this reason, the district court's order should be summarily affirmed.