STATE EX REL. WKRS. COMP. v. Borodine

784 P.2d 228
CourtWyoming Supreme Court
DecidedDecember 21, 1989
Docket89-172
StatusPublished

This text of 784 P.2d 228 (STATE EX REL. WKRS. COMP. v. Borodine) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE EX REL. WKRS. COMP. v. Borodine, 784 P.2d 228 (Wyo. 1989).

Opinion

784 P.2d 228 (1989)

STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellant (Petitioner),
v.
Anne BORODINE, Appellee (Respondent).

No. 89-172.

Supreme Court of Wyoming.

December 21, 1989.

*229 Joseph B. Meyer, Atty. Gen., and Ronald Arnold, Sr. Asst. Atty. Gen., for appellant.

George Santini, Graves, Santini & Villimez, P.C., Cheyenne, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

THOMAS, Justice.

The problem presented in this case is whether the Wyoming Worker's Compensation Act, §§ 27-12-101 through XX-XX-XXX, W.S. 1977, should be applied in a manner that limits an individual's choice of employments. The hearing officer entered an award in favor of the employee, Anne Borodine (Borodine), that was premised upon a disability relating to the employment in which Borodine was injured. That award was granted even though the hearing officer also found that it did not affect Borodine's ability to work in a more sedentary employment in which she had both formal training and experience. Upon review, the district court affirmed the award entered by the hearing officer. We find no error in the determination of the hearing officer, and we affirm the ruling of the district court.

In this appeal, the Worker's Compensation Division of the State of Wyoming (State) advances two issues. These are:

"1. Whether the administrative hearing officer erred as a matter of law by finding that appellee had a loss of earnings capacity despite the fact that the hearing officer found the appellee could return to former, higher paying employment.
"2. Whether the administrative hearing officer's findings of fact are supported by substantial evidence."

Borodine expresses the problem with the statement of a single issue:

"Is the award of twenty percent (20%) permanent partial disability entered by the Hearing Officer supported by substantial evidence?"

Borodine injured her back and her right wrist in a work-related accident on January 9, 1986. She then was employed as a painter/sandblaster with Western Coating & Sandblasting. On June 30, 1987, the District Court for the Third Judicial District entered an order finding that the January 9, 1986 accident had caused an injury to Borodine's back and a carpal tunnel injury to her right wrist. In May of 1988, Borodine received an award of permanent partial disability of five percent of the whole body based upon the work-related injury to her back. She did not, at that time, receive any award for the injury to her wrist. On September 21, 1988, she filed an Application and Claim for Permanent Total Disability Benefits. The State objected to this claim and, on February 28, 1989, a contested case hearing was conducted by the hearing officer, pursuant to § 27-14-602, W.S. 1977 (Cum.Supp. 1987).

Borodine testified at the contested case hearing and was subject to cross-examination by the State. She explained the facts relating to her injuries and her previous experience and training in various employment situations. The State relied upon the testimony of an independent consultant with a master's degree in petroleum geology to support its theory. Both sides stipulated to the admissibility of various exhibits, and the State particularly relied upon a Professional Rehabilitation Management Report. The State urged that the evidence demonstrated Borodine's prior experience and training as a geologist, and that her ability to perform work-related duties in that profession was not diminished by the accident which injured her back and her wrist.

On March 15, 1989, the hearing officer entered his Findings of Facts, Conclusions of Law and Order in which he granted Borodine an award for permanent partial disability in the amount of twenty percent of the body as a whole in addition to the five percent permanent partial physical impairment award made in May of 1988. In the findings portion of his order, the hearing officer compared Borodine's salary of $600 per week as a union painter with her salary of $175 per week as a bartender (the occupation she was pursuing at the time of the hearing). The hearing officer noted *230 that Borodine's physical limitations prevented her from continuing in her secondary employment as a union painter. Based upon the evidence and the testimony presented at the hearing, it was the hearing officer's conclusion "that there [had] been a significant decrease in [Borodine's] earning capacity as a result of her work-related injuries preventing her from returning to work in her secondary employment as a union painter and that she [was] entitled to worker's compensation disability benefits in order to fully and adequately compensate her for such loss." The hearing officer also found "that in order to return [Borodine] to her previous level of earning capacity, it [was] both appropriate and necessary that she receive further education and training." The hearing officer noted that the disability award was compensation not only for Borodine's five percent physical impairment, but also for her loss of earning capacity.

On April 21, 1989, the State filed in the district court a Petition for Judicial Review of the hearing officer's decision. The district court reviewed the record and briefs submitted by the parties before entering its Order Denying Petition for Review on July 13, 1989. The district court affirmed the award made by the hearing officer, and the State appealed from that order to this court.

The record demonstrates that Borodine had not only formal education but experience and additional training as a field geologist. Because of a slump in the petroleum industry she had sought employment as a painter/sandblaster, and she was pursuing that occupation at the time of her injury. Her prior experience and training as a painter/sandblaster enabled her to rely on that occupation as a secondary source of employment. The evidence that Borodine cannot return to her work as a painter because of her injuries is not contested in this record.

The State argues that the hearing officer erred, as a matter of law, in interpreting § 27-12-403(h), W.S. 1977 (June 1983 Repl.), which provides, in pertinent part:

"* * * One (1) factor to be considered is the ability of the employee to continue to perform work for which he was reasonably suited by experience or training prior to the injury."

Section 27-12-403(h), W.S. 1977 (June 1983 Repl.), has been amended and renumbered as § 27-14-405(b)(xvi), W.S. 1977 (June 1987 Repl.), with the relevant language being identical. The State contends that a proper statutory construction of this provision must focus on "what effect did Appellee's injury have on her ability to work at any jobs — not just the sandblasting/painting jobs." The State asserts that "[i]f an injured worker has the physical ability to return to a job for which she had prior experience and training, then there is no `loss of earnings capacity.'" The State then emphasizes the finding by the hearing officer that Borodine could return to work as a geologist, and the State's conclusion is that, as a matter of law, the finding, when related to a correct construction of the statute, prevented any award to Borodine for loss of earning capacity. Borodine's response is that the evidence does support the hearing officer's conclusion that there has been a substantial diminution of her earning capacity as a painter/sandblaster, and the award should, for that reason, be affirmed.

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784 P.2d 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-wkrs-comp-v-borodine-wyo-1989.