Aanenson v. State ex rel. Wyoming Worker's Compensation Div.
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Aanenson v. State ex rel. Wyoming Worker's Compensation Div.
1992 WY 168
842 P.2d 1077
Case Number: 92-81
Decided: 12/08/1992
Supreme Court of Wyoming
Carson R. AANENSON, Appellant (Petitioner Employee-Claimant),
v.
STATE
of Wyoming ex
rel., WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Respondent
Objector).
Appeal from District Court, AlbanyCounty, Arthur T. Hanscum,
J.
Michael
Schilling, Laramie, for appellant.
Joseph
B. Meyer, Atty. Gen., and J.C. DeMers, Sr. Asst. Atty. Gen., for appellee.
Before
MACY, C.J., and THOMAS, CARDINE,
URBIGKIT and GOLDEN, JJ.
CARDINE, Justice.
[¶1.] Carson R. Aanenson
seeks review of a district court order affirming the denial of worker's
compensation benefits by a hearing officer. Mr. Aanenson was diagnosed with a
ruptured disc in 1986 but neglected to file a report or claim for worker's
compensation. In 1990, Aanenson filed an injury report and then a claim for
coverage for an operation on the same ruptured disc. The benefits were denied
because appellant missed the statutory deadline provided in W.S. 27-12-503
(1977).
[¶2.] We
affirm.
[¶3.] Mr. Aanenson presents
the following issue:
I.
Whether appellant's claims for a ruptured dis[c] injury are timely filed within
one year from the date of the treating physician's determination that the
condition requires surgical correction.
[¶4.] The State presents it
this way:
I. Does
substantial evidence exist to support the hearing examiner's finding that the
statute of limitations began to run in May of 1986 and that the appellant's
claim was barred pursuant to W.S. § 27-14-503.
FACTS
[¶5.] Mr. Aanenson was first
employed by Roger and Jean Schlump, the sole proprietors of Ace Salvage, in
1985. The Schlumps hired him to manage and operate their salvage yard, which
required strenuous lifting. Throughout the first two to three years, Mr.
Aanenson was sporadically paid small sums, despite working 300-400 hour months.
However, in 1988, the Schlumps incorporated Ace Salvage, made Aanenson vice
president, and issued him shares in the corporation.
[¶6.] While moving a number
of car transmissions and car rear ends in the spring of 1986, Aanenson gradually
developed severe pain in his left leg and buttocks. In early May, the pain
became intolerable, forcing a visit to the emergency room. Based upon the
hospital's examination and advice from his employer, Mr. Aanenson scheduled an
appointment with Dr. Kieffer.
[¶7.] Dr. Kieffer examined
Mr. Aanenson and ordered a CAT scan of Mr. Aanenson's lower back. Based upon the
exam and CAT scan, Dr. Kieffer explained to Mr. Aanenson that he had ruptured a
disc, pinched a nerve, and that he had a floating cracked vertebra. Mr. Aanenson
did not file a worker's compensation claim or accident report. Mr. Aanenson and
Dr. Kieffer agreed upon a conservative treatment approach, including bed rest,
medication, stretching exercises, and time off from work. After about two
months, Mr. Aanenson returned to work and gradually was able to perform his same
duties.
[¶8.] Over the next three
years, Mr. Aanenson continued to diligently perform his duties at the salvage
yard and was able to endure whatever pain existed. In 1990, however, the salvage
company began a new project which required more strenuous lifting and moving
than had previously been needed. The severe pain returned. Mr. Aanenson
consulted a second physician, Dr. Wirt. Dr. Wirt diagnosed a ruptured disc at
L5-S1 and confirmed that it was the same disc injury as in 1986. Dr. Wirt
recommended surgery.
[¶9.] On December 3, 1990,
Mr. Aanenson filed a worker's compensation employee injury report, and an
employer's report was also completed. Dr. Wirt and Mr. Aanenson set a date for
surgery, and Dr. Wirt sent in a claim for worker's compensation coverage. The
Division of Worker's Compensation denied coverage of the surgery because they
viewed the 1990 injury as pre-dating to 1986, and thus the time for filing the
1986 claim had passed. Mr. Aanenson then requested a hearing before the hearing
officer, who also denied his claims. Aanenson appealed the decision to the
district court, who then affirmed the hearing officer's denial. Mr. Aanenson now
asks us to review the district court order.
STANDARD
OF REVIEW
[¶10.] The standard to which we must adhere in
reviewing agency factual findings is as follows:
"We
examine the entire record to determine if there is substantial evidence to
support an agency's findings. If the agency's decision is supported by
substantial evidence, we cannot properly substitute our judgment for that of the
agency, and must uphold the findings on appeal. Substantial evidence is relevant
evidence which a reasonable mind might accept in support of the conclusions of
the agency. It is more than a scintilla of evidence."
State
ex rel. Wyoming Worker's Compensation Div. v. White, 837 P.2d 1095 (Wyo. 1992),
quoting Hohnholt v. Basin Electric Power Co-op, 784 P.2d 233, 234 (Wyo. 1989);
see also Trout v. Wyoming Oil & Gas Conservation Comm'n, 721 P.2d 1047, 1050
(Wyo. 1986). Agency conclusions of law, however, are not afforded the same
deference. Thus, our standard of review for agency conclusions of law is as
follows:
If the
conclusion of law is in accordance with law, it is affirmed, [Department of
Revenue and Taxation of State of Wyoming v.] Casper Legion Baseball Club, Inc.,
766 [767] P.2d 608 [Wyo. 1989]; if it is not, it is to be
corrected. Rocky Mountain Oil & Gas Ass'n [v. State Board of Equalization],
749 P.2d 221 [Wyo. 1987].
Employment
Security Comm'n v. Western Gas Processors, Ltd., 786 P.2d 866, 871, 86 A.L.R.4th
295 (Wyo.
1990).
[¶11.] When we review mixed questions of law and
fact, our standard has been stated this way:
When an agency's
determinations contain elements of law and fact, we will not treat them as
findings of fact. We extend deference only to agency findings of "basic fact."
When reviewing a finding of "ultimate fact," we divide the factual and legal
aspects of the finding to determine whether the correct rule of law has been
properly applied to the facts. If the correct rule of law has not been properly
applied, we do not defer to the agency's finding but correct the agency's error
in either stating or applying the law.
Union
Pacific R.R. Co. v. State Bd. of Equalization, 802 P.2d 856, 860-61 (Wyo.
1990).
[¶12.] Before choosing the appropriate standard
of review, we must determine whether we are being asked to review a finding of
fact, a conclusion of law, or a mixed question of fact and law. Distinguishing
between fact and law is a sometimes difficult, if not impossible, task because
"[m]atters of law grow downward into roots of fact, and matters of fact reach
upward, without a break, into matters of law." Ray A. Brown, Fact and Law in
Judicial Review, 56 Harv.L.Rev. 899, 904 (1943), quoting Dickinson, Administrative
Justice and the Supremacy of the Law 55 (1927).
[¶13.] In discussing distinctions between issues
of fact and issues of law in the area of the worker's compensation statute of
limitations, we said, in Claim of Grindle, 722 P.2d 166, 169 (Wyo.
1986):
"It is
the duty of the trial judge as finder of fact to determine and find by a
preponderance of the evidence whether there was a compensable injury, and, if
so, when it was actually suffered by an employee. . . ." In the Matter of
Barnes, Wyo.,
587 P.2d 214 (1978); and Big Horn Coal Company v. Wartensleben, Wyo., 502 P.2d 187
(1972).
In
Claim of Nielsen, 806 P.2d 297, 299 (Wyo. 1991), we commented
further:
While it is true a
claimant has the burden of proving the actual time of disability and its cause,
for purposes of establishing the date of occurrence of an injury to ascertain
the time from which the statute of limitations begins to run is a legal question
and not one of fact. [citations omitted]
From
these excerpts, it appears that our issue is a mixed question of law and
fact.
[¶14.] A "mixed question of law and fact" is a
conclusion reached or a finding made by an agency through application of legal
precepts to the historical and narrative events of a particular case. Union
Pacific R.R. Co., 802 P.2d at 860. Professor Davis explained the concept using
the most common of issues: Was the defendant negligent? He divided the issue
into two questions: (1) What did the defendant do? (an issue of historical
fact), and (2) Do defendant's actions constitute negligence? (an issue of law).
5 Davis,
Administrative Law Treatise § 29:9 at 367 (2d ed. 1984).
[¶15.] The historical actions and inactions of
Mr. Aanenson, as determined by the hearing officer, are historical or basic
facts. However, whether or not W.S. 27-12-503 acts as a bar to Mr. Aanenson's
claim when applied to the basic facts is an issue of law. Therefore, the
findings made by the hearing officer concerning appellant's historical actions
are given due deference, but the conclusion that W.S. 27-12-503 bars appellant's
claim will be affirmed only if it is in accordance with
law.
ANALYSIS
Findings of Fact
[¶16.] The hearing officer expressed his
findings of basic fact as follows:
This office is
persuaded that Employee-Claimant [appellant] ruptured his L5-S1 disk in 1986.
This medical condition was diagnosed in 1986, and the diagnosis was communicated
to Employee-Claimant. Employee-Claimant has no doubts as to the fact that this
diagnosed condition was caused by his Ace employment. Although able to delay
surgical treatment through the date of this hearing, Employee-Claimant
nevertheless was totally disabled for two (2) months in 1986, and since then has
had intermittent periods where his medical condition prevented his engaging in
unrestricted work effort with Ace. Despite this, Employee-Claimant did not file
any worker's compensation accident report until approximately December 5, 1990,
and did not file any worker's compensation claim until December 17,
1990.
Each of
these findings made by the hearing officer is supported by Mr. Aanenson's
testimony and the record. Mr. Aanenson testified that he was informed of the
ruptured disk by Dr. Kieffer in 1986; that he believed the injury happened at
Ace Salvage; that he was able to postpone surgery; that he was unable to work
for two months after the injury in 1986; that he experienced periods where he
could not fully perform his normal duties during the period between 1986 and
1990; and that he failed to file any worker's compensation form until December
of 1990. Therefore we hold these findings, as to the basic facts, to be
supported by substantial evidence and will not substitute our judgment for that
of the hearing officer.
Conclusions of Law
[¶17.] Mr. Aanenson makes only one legal
argument for our review: He argues that this court has adopted a "per claim"
statute of limitations through three cases decided since 1986. He admits that
without the intervention of these cases his claim would be barred under pre-1987
law. In order to address Mr. Aanenson's argument, we feel it necessary to review
the cases construing our worker's compensation statute of
limitations.
[¶18.] When Mr. Aanenson was initially diagnosed
with a ruptured disk, the statute of limitations in effect at the time of injury
and which controls was W.S. 27-12-503 (1977). Seckman v. Wyo-Ben, Inc., 783 P.2d 161, 166 (Wyo. 1989); Wyoming Refining Co. v. Bottjen, 695 P.2d 647, 648
(Wyo. 1985).
Wyoming
Statute 27-12-503 (1977) provided:
(a) No
order or award for compensation involving an injury which is the result of a
single brief occurrence rather than occurring over a substantial period of time,
shall be made unless in addition to the reports of the injury, an application or
claim for award is filed with the clerk of court in the county in which the
injury occurred, within one (1) year after the day on which the injury occurred
or for injuries not readily apparent, within
one (1) year after discovery of the injury by the employee. The reports
of an accident do not constitute a claim for compensation.
(b) The
right of compensation for injury which occurs over a substantial period of time
is barred unless a claim for benefits is filed with the clerk of the district
court within one (1) year after a diagnosis of injury is first communicated to
the employee, or within three (3) years from the date of last injurious exposure
to the condition causing the injury, whichever occurs first. . . . [emphasis
added]
(This
provision was renumbered as W.S. 27-14-503 in 1986 and was amended again
effective March 7, 1989. However, these amendments do not affect the outcome of
this case.)
[¶19.] The worker's compensation statute of
limitations has been consistently interpreted by this court. A cause of action
under the Worker's Compensation Act does not arise until the claimant has
suffered a "compensable injury." In the Matter of Barnes, 587 P.2d 214, 218
(Wyo. 1978); Big Horn Coal Co. v. Wartensleben,
502 P.2d 187, 188 (Wyo. 1972); Baldwin v.
Scullion, 50 Wyo. 508, 62 P.2d 531, 535, 108 A.L.R. 304
(1936). Therefore, the applicable statute of limitations does not begin running
until the claimant has suffered a "compensable injury." Barnes, 587 P.2d at 219;
Baldwin, 50 Wyo. at 530, 62 P.2d at 539. In addition, a
single employment accident may create more than one "compensable injury" which
in turn results in more than one date for the start of the statute of
limitations. Claim of Nielsen, 806 P.2d at 299; State ex rel. Wyoming Worker's Compensation Div. v. Malkowski, 741 P.2d 604, 605 (Wyo. 1987); Pacific Power & Light
Co. v. Rupe, 741 P.2d 609, 610 (Wyo. 1987); Barnes, 587 P.2d at
218.
[¶20.] A "compensable injury" occurs, starting
the statutory period, when it becomes reasonably clear from the nature and
seriousness of the injury that it is compensable. Big Horn Coal Co., 502 P.2d at
188; Barnes, 587 P.2d at 219; 3 Larson, The Law of Workmen's Compensation §
78.40-.41(a) at 15-155 (1983). To further illuminate this general concept we
examine several of the applicable cases.
[¶21.] Our approach first began to evolve in
Baldwin. Mr. Scullion, the claimant, was
injured at work when his hip was struck by a large metal pipe in July of 1934.
He was diagnosed with arthritic rheumatism, given medicine and then permitted to
return to work. Scullion consulted a second physician who diagnosed the hip
injury as a fracture. In April 1935, after consulting a bone specialist,
Scullion filed reports of the accident. After Scullion had received some
benefits under worker's compensation, his employer objected because the claim
was not timely filed. Baldwin, 50 Wyo. at 514-16, 62 P.2d at 532-33. After
reviewing the law in other jurisdictions, we held that Scullion had timely filed
for the fracture because it was not diagnosed and thus not discovered until
January of 1935. Id., 50 Wyo. at 531, 62 P.2d at
539.
[¶22.] In Big Horn Coal Co., the claimant
(Wartensleben) suffered a back injury that was originally diagnosed as
nervousness and treated with muscle relaxants. Later, however, after having his
back x-rayed, Wartensleben was informed that he had a more serious injury. We
held that Wartensleben had not suffered a "compensable injury" until he was
informed of the more serious injury. In so holding we
said:
[W]here
an employee in the course of his employment sustains an apparent trivial injury which does not result in
present disability and which would not reasonably be expected to cause future
disability, but which injury in fact over a period of latency does cause future
disability, the time for giving notice of the occurrence of the injury to the
employer runs from the time when it becomes apparent that such injury has
resulted in, or is likely to cause, compensable
disability.
Big
Horn Coal Co., 502 P.2d at 188, citing Potter v. Midland Cooperatives, Inc., 248
Minn. 380, 80 N.W.2d 59, 61 (1956).
[¶23.] In Barnes, the claimant was injured at
work in 1967 and was diagnosed with a possible herniated disc. The claimant
(Barnes) filed a worker's compensation injury report, and the cost of the
necessary treatments were covered. Almost twenty years later, Barnes filed for
further coverage because the injury required surgery. We concluded that the
claimant could not reasonably be expected to comprehend that his injury was
compensable until he was affirmatively told that he suffered from a herniated
disc. In reaching this conclusion, we emphasized that the claimant was
originally diagnosed with only a possible herniated disc.
[¶24.] In Grindle, we framed our analysis, of
when the statute of limitations begins to run, using language specifically found
in W.S. 27-12-503(a). We said that the statute begins when the injury becomes
"readily apparent." Despite the different phraseology, we applied the same basic
test as described and used in Baldwin, Big Horn Coal Co. and Barnes. In fact, we
cite the Barnes and Baldwin line of cases which established the "compensable
injury" rule. Grindle, 722 P.2d at 169. In reaching the conclusion that
Grindle's injury was "readily apparent" when she was originally injured, we
stressed that she was a licensed practical nurse when the injury occurred and
that she had back surgery before she filed any claim.
[¶25.] As demonstrated by the foregoing cases,
when determining the time a particular injury became compensable, it should be
asked: When would a reasonable person, under the circumstances, have understood
the full extent and nature of the injury and that the injury was related to his
or her employment? The statute of limitations starts running when that date is
fixed.
[¶26.] In light of the analysis elicited from
our precedents and our ruling in Grindle, we find that the hearing officer
properly concluded that Mr. Aanenson suffered a compensable injury in 1986 when
he was informed by Dr. Kieffer that he had a ruptured disc, a pinched nerve, and
a floating cracked vertebra and was unable to work for two to three months. For
whatever reason, he chose not to file a worker's compensation claim. The statute
of limitations, however, began running in 1986 when he was diagnosed and knew
the nature and extent of his disabling injury, and he is barred by W.S.
27-12-503 from any claim for coverage of his ruptured disc at
L5-S1.
[¶27.] As the hearing officer concluded, the
facts of Grindle closely mirror Mr. Aanenson's claim. Both Grindle and Mr.
Aanenson suffered lower back injuries which caused severe initial pain but after
a period of time diminished. Neither Grindle nor Aanenson filed an injury report
or a worker's compensation claim when they were originally injured. In addition,
they both were uniquely aware that they had a serious injury, Grindle because
she was a licensed nurse and had surgery performed, and Aanenson because he was
diagnosed with and informed of the exact nature and gravity of his injury. In
his testimony concerning the discussion with Dr. Kieffer in 1986, appellant
replied:
I went
in, filled out the reports, Dr. Kieffer examined me and told me that I had a ruptured disc and [a] pinched nerve, a piece
of floating bone in my back and a cracked vertebra. [emphasis
added]
[¶28.] Even if the Grindle decision did not
exist, application of the general analysis developed from Baldwin would require the same conclusion. A reasonable
person would realize the serious nature of his or her injury when informed of a
list of injuries like those expressed in Mr. Aanenson's testimony. These are not
trivial injuries nor was there any doubt as to the occurrence of the injuries at
Ace Salvage. Coupling this with the fact that Mr. Aanenson had to miss several
months of work due to the pain, it is clear he should have understood the
compensable nature of his injury.
[¶29.] Returning to Mr. Aanenson's argument that
we have adopted a "statute of limitations per claim" doctrine since Grindle, we
agree with the district court and affirm the hearing officer's conclusion
against this proposition.
[¶30.] Mr. Aanenson claims that our decisions in
Malkowski, Rupe and Nielsen have changed the law since Grindle. We have long
held that an accident may result in two compensable injuries which manifest at
separate times. Baldwin, 50 Wyo. at 531, 62 P.2d at 539; Barnes, 587 P.2d
at 218. As the hearing officer concluded, each of these cases is distinguishable
because each involved a second compensable injury. In Malkowski the claimant's
wrist injury deteriorated to a distinguishably worse condition; in Rupe the
claimant's knee injury required additional surgery; and in Nielsen the claimant
suffered pain in different parts of his back each time a second "compensable
injury" occurred and his back deteriorated to the point where he was declared to
have a 100 percent disability.
[¶31.] In Mr. Aanenson's case, there is no
evidence that this is a second "compensable injury." Instead, Dr. Wirt's
testimony states that his diagnosis in 1990 is the same as Dr. Kieffer's in
1986. Perhaps if there was some evidence that this 1990 claim involved an
increase in herniation of the disc, then there might arguably be a second
compensable injury. However, that evidence does not exist in the
record.
[¶32.] In addition, Mr. Rupe, Mr. Malkowski and
Mr. Nielsen all filed timely reports and claims with the Worker's Compensation
Division when they were first injured. Mr. Aanenson failed to file any report or
claim with the Worker's Compensation Division until 1990, over four years after
his initial injury was diagnosed.
[¶33.] As both the hearing officer and the
district court recognized, our decision is harsh for Mr. Aanenson. We must,
however, abide by our law and precedent, and we cannot say that the hearing
officer erred in applying the law. Mr. Aanenson's argument that the worker's
compensation statutes should be construed in favor of the worker, see generally
Seckman, 783 P.2d at 165, has not fallen upon deaf ears. However, we are not at
liberty to create our own exceptions to language adopted by our legislature.
Seckman, 783 P.2d at 165. Additionally, we note the important role the statute
plays in our worker's compensation scheme, by providing certainty and a ripe
opportunity to investigate an injury. Holding for Mr. Aanenson would be to
ignore these important policies.
CONCLUSION
[¶34.] We hold that the hearing officer's
findings of fact are supported by substantial evidence and that his conclusions
of law are in accordance with the law. Therefore, we must affirm the denial of
benefits to Mr. Aanenson.
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