Wilkinson v. State ex rel. Wyoming Workers' Safety & Compensation Division

991 P.2d 1228, 1999 Wyo. LEXIS 181

• Court: Wyoming Supreme Court
• Decided: December 7, 1999
• Docket: Nos. 98-251, 99-44
• Status: Published

Opinions

MACY, Justice.

Appellant David Wilkinson appeals from the Natrona County district court’s order affirming the hearing examiner’s dismissal with prejudice of his application for extended permanent total disability benefits and from the Laramie County district court’s order dismissing his petition for review.

We affirm the district courts’ decisions.

ISSUES

Wilkinson presents two issues for our review:

1. Is the Worker’s Compensation Division required to comply with a final order of the Medical Commission awarding extended benefits to the Claimant?

2. Was the hearing examiner’s dismissal of Wilkinson’s alternate application with prejudice an abuse of discretion or otherwise not in accordance with law?

FACTS

It is necessary for us to recite, in some detail, the unusual and complicated procedural history of the cases before us in order to explain our decision. On December 30,1983, Wilkinson was severely injured in a work-related accident. In 1988, the Wyoming Workers’ Compensation Division (the division) determined that Wilkinson was permanently totally disabled. Wilkinson was awarded permanent total disability benefits, and the division finished paying those benefits in April 1992. Wilkinson subsequently applied for and was granted extended permanent total disability benefits through August 1993.

In 1996, Wilkinson again applied for extended permanent total disability benefits. The division denied his application, and Wilkinson objected. The matter was referred to the Medical Commission for a contested case hearing. The commission determined that the law which was in effect when Wilkinson suffered his initial injury in 1983 applied to his application. It ruled that Wilkinson remained permanently totally disabled and that he was entitled to extended benefits. The division paid one year’s worth of extended benefits to Wilkinson.

On July 15, 1997, Wilkinson applied for additional extended permanent total disability benefits. The division denied his application, and the matter was referred to the Office of Administrative Hearings for a contested case hearing. The division sought a ruling on what law applied to Wilkinson’s application. Wilkinson moved for a summary judgment, maintaining that the Medical Commission’s order, which relied upon Wyo. Stat. Ann. § 27-12-405(d) (Michie 1983) (repealed 1986),¹ required the division to continue to pay him extended permanent total disability benefits. He claimed, therefore, that the hearing examiner should not reconsider issues which had been decided by the Medical Commission and that she should apply the Medical Commission’s decision to his July 15,1997, application.

The hearing examiner held a hearing on November 3, 1997, to consider the parties’ motions. She denied Wilkinson’s motion for a summary judgment and ruled that the law in effect in 1988, when it was determined that Wilkinson was permanently totally disabled, was the law that should be applied to his application for extended benefits. Wilkinson moved for a continuance of the contested case hearing which was scheduled for November 6, 1997. The hearing examiner denied Wilkinson’s motion.

On November 5, 1997, Wilkinson withdrew his application for benefits and moved for a dismissal of the pending action without prejudice. The division filed a traverse to Wilkinson’s motion for a dismissal without prejudice. The hearing examiner heard the parties’ arguments on Wilkinson’s motion on November 6, 1997. She denied his motion to dismiss without prejudice and gave him the choice of proceeding with the contested case hearing on his application or having a dismissal with prejudice entered against him. Wilkinson refused to proceed and did not offer any evidence. Consequently, the hearing examiner ruled that Wilkinson had not satisfied his burden of proof and dismissed the case with prejudice.

Wilkinson filed a petition for review of the hearing examiner’s decision in the Natrona County district court (Case No. 98-251). The district court concluded that the hearing examiner’s decision was in accordance with law and affirmed. Wilkinson subsequently appealed from the district court’s decision to the Wyoming Supreme Court.

Wilkinson also filed a petition for review in the Laramie County district court (Case No. 99-44), seeking review of the division’s refusal to abide by the Medical Commission’s order. The state filed an objection to the petition for review, arguing that the petition was untimely and was barred by the doctrine of collateral estoppel. The district court dismissed Wilkinson’s petition for review on the ground that the issue he raised in his petition was barred by the doctrine of collateral es-toppel. Wilkinson appealed to the Wyoming Supreme Court, and this Court consolidated Case No. 98-251 and Case No. 99-44 for appellate review.

STANDARD OF REVIEW

When this Court reviews an administrative agency’s decision, we do not accord special deference to the district court’s determination. Wyoming Department of Employment, Unemployment Insurance Commission v. SF Phosphates, Ltd., 976 P.2d 199, 201 (Wyo.1999). Instead, we review the case as if it had come directly to the Wyoming Supreme Court from the agency. Shaffer v. State ex rel. Wyoming Workers’ Safety and Compensation Division, 960 P.2d 504, 506 (Wyo.1998). Judicial review of administrative decisions is limited to a determination of the matters set out in Wyo. Stat. Ann. § 16-3-114(c) (LEXIS 1999). W.R.A.P. 12.09(a); Everheart v. S & L Industrial, 957 P.2d 847, 851 (Wyo.1998).

This Court will not disturb an agency’s findings of fact unless they are clearly contrary to the overwhelming weight of the evidence. Nelson v. Sheridan Manor, 939 P.2d 252, 255 (Wyo.1997). We do not, however, grant the same deference to an agency’s conclusions of law. Id. We affirm an agency’s conclusions of law when they are in accordance with law. Corman v. State ex rel. Wyoming Workers’ Compensation Division, 909 P.2d 966, 970 (Wyo.1996). When an agency has not invoked and properly applied the correct rale of law, we remedy the agency’s errors. Gneiting v. State ex rel. Wyoming Workers’ Compensation Division, 897 P.2d 1306, 1308 (Wyo.1995).

DISCUSSION

Case No. 98-251

It is somewhat difficult to discern from Wilkinson’s brief what errors he claims the hearing examiner made in Case No. 98-251 because he confuses the issues in that case with the issues in Case No. 99-44. We have, however, distilled his argument concerning Case No. 98-251 down to two primary claims of error: (1) The hearing examiner’s dismissal of Wilkinson’s case with prejudice was an abuse of discretion or otherwise not in accordance with law; and (2) the hearing examiner erred when she did not apply the Medical Commission’s decision, which ruled that Wilkinson was entitled to' extended permanent total disability benefits, to his July 15, 1997, application.

A. Dismissal of Case with Prejudice

This Court has recognized a hearing examiner’s authority to dismiss a worker’s compensation case. See, e.g., Bila v. Accurate Telecom, 964 P.2d 1270 (Wyo.1998); Walsh v. Holly Sugar Corporation, 931 P.2d 241 (Wyo.1997). The hearing examiner in this case did not indicate what procedural rule she relied upon in dismissing Wilkinson’s action. Nevertheless, the parties seem to agree that W.R.C.P. 41 was applicable to this situation. That rale states in pertinent part:

(a) Voluntary Dismissal; Effect Thereof.

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(2) By Order of Court. Except as provided in paragraph (1), an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiffs motion to dismiss, the counterclaim shall remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

(b) Involuntary Dismissal; Effect Thereof.

(1) By Defendant. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

(2) By the Court. Upon its own motion the court may dismiss without prejudice any action not prosecuted or brought to trial with due diligence.

W.R.C.P. 41.

Wilkinson moved, presumably under W.R.C.P. 41(a)(2), for a voluntary dismissal of the action without prejudice. He sought the dismissal because he was not prepared for the contested case hearing and because he had filed a petition for a writ of mandamus with the Natrona County district court to compel the division to comply with the Medical Commission’s order.² The division objected to Wilkinson’s motion to dismiss without prejudice and requested that a dismissal with prejudice be entered against him. The hearing examiner denied Wilkinson’s motion to dismiss without prejudice and told him that he must present evidence in support of his application or a dismissal with prejudice would be entered against him. Wilkinson refused to proceed with the contested case hearing, and the hearing examiner dismissed the action with prejudice.

When a W.R.C.P. 41(a)(2) motion to dismiss is denied, the case continues, and the order is not appealable. 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2376 (1971). We will not, therefore, review the hearing examiner’s denial of Wilkinson’s motion to dismiss without prejudice.

The division’s request for a dismissal with prejudice was presumably brought under W.R.C.P. 41(b)(1). A dismissal under that rule generally amounts to an adjudication on the merits. W.R.C.P. 41(b)(1); Wright & Miller, supra, at § 2369. There seem to be two underlying bases for the hearing examiner’s decision to dismiss Wilkinson’s application with prejudice: (1) Wilkinson refused, in contravention of her prior orders, to proceed with his case; and (2) he failed to meet his burden of proof. We agree with the hearing examiner on both fronts.

Wilkinson admitted that part of the reason he requested the motion to dismiss without prejudice was to delay the contested ease hearing because he was not prepared for it. The hearing examiner had previously denied Wilkinson’s motion for a continuance of the hearing, and we cannot fault her for refusing to allow him to circumvent her earlier ruling. Furthermore, Wilkinson failed to meet his burden to prove that he was entitled to receive extended permanent total disability benefits when he declined to present evidence in support of his application. The hearing examiner correctly dismissed Wilkinson’s July 15, 1997, application with prejudice. See Turnbough v. Campbell County Memorial Hospital, 499 P.2d 595, 598 (Wyo.1972) (McIntyre, C.J., concurring).

B. Finality of the Medical Commission’s Decision

We turn now to Wilkinson’s claim that the hearing examiner erred by failing to apply the Medical Commission’s decision to his July 15, 1997, application for extended permanent total disability benefits. Wilkinson did not include an argument on that issue in the brief he submitted to the district court. We generally do not consider issues which were not presented to the lower tribunal and do not pertain to fundamental matters. Zielinske v. Johnson County School District No. 1, 959 P.2d 706, 710 (Wyo.1998). We will not, therefore, consider Wilkinson’s argument concerning the preclusive effect of the Medical Commission’s decision because he did not present it to the district court.³

Case No. 99-44

Wilkinson claims that the Laramie County district court erred when it dismissed his petition for review in Case No. 99-44. The state argues that the dismissal was appropriate because Wilkinson’s claims in that case were barred by the doctrine of collateral estoppel. We agree with the state.

Collateral estoppel, which is also known as issue preclusion, applies to administrative decisions. University of Wyoming v. Gressley, 978 P.2d 1146, 1153 (Wyo.1999); Kahrs v. Board of Trustees for Platte County School District No. 1, 901 P.2d 404, 406 (Wyo.1995). The collateral estoppel doctrine prohibits relitigation of issues which were actually and necessarily involved in a prior action between the same parties. Id. Courts consider four factors in determining whether the collateral estoppel doctrine applies:

(1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the pri- or proceeding.

Slavens v. Board of County Commissioners for Uinta County, 854 P.2d 683, 686 (Wyo.1993).

The issue presented to the Laramie County district court, which concerned whether or not the Medical Commission’s decision applied to the July 15, 1997, application, was identical to one of the issues determined in the administrative proceeding. Wilkinson was a party to the administrative proceeding, and the hearing examiner issued a ruling on the merits of the issue. Wilkinson was afforded a full and fair opportunity to litigate the issue before the hearing examiner. Although he failed to take advantage of his right to have the hearing examiner’s decision reviewed by the Natrona County district court, Wilkinson had the opportunity for full judicial consideration of the issue. A full and fair opportunity to litigate an issue is all that is required for the collateral estoppel doctrine to apply. CLS v. CLJ, 693 P.2d 774, 776-77 (Wyo.1985). All the factors of the collateral estoppel doctrine were present in this case, and the Laramie County district court properly dismissed Wilkinson’s petition for review. See Davis v. State, 910 P.2d 555, 558 (Wyo.1996).

Affirmed.

1 . Before its repeal in 1986, § 27-12-405(d) provided in pertinent part:

(d) Upon the expiration of the period of time in which the amount awarded to the employee for permanent total disability would be paid in its entirety at the monthly rates fixed by law, the district court may award additional compensation to the injured employee for any continuing impairment of his earning power resulting from the original injury, subject to the following:

(i) A claim for compensation must be filed by the employee, or by someone on his behalf, and a hearing held;

(ii) The employee shall establish that his earning power has been and continues to be impaired by reason of the injury for which compensation was awarded;

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(v) The additional compensation shall be payable only so long as the employee’s earning power is impaired, and his right to receive compensation terminates upon his death;

(vi) The award may be increased within the limit set above or decreased upon proper showing to the court that there has been a substantial change in the employee’s earning power, except that no modification of a prior award is effective less than six (6) months after the effective date of the prior award.

2 . The documents concerning Wilkinson’s mandamus action are not included in the record on appeal. The parties represent in their briefs that the action was voluntarily dismissed on June 8, 1998.

3 . Wilkinson asserts in his reply brief that he could not present his argument to the district court because a denial of a motion for a summary judgment is not a final appealable order. It is interesting to note that he did present the issue to this Court. In any event, Wilkinson is correct when he states that a denial of a motion for a summary judgment generally is not appeal-able. Wolter v. Equitable Resources Energy Company, Western Region, 979 P.2d 948, 953 (Wyo.1999). Nevertheless, when a case has been fully decided and a party desires appellate review of a lower tribunal’s determination of law in the context of a denial of a summary judgment motion, the issue must be included as part of the appeal of the entire case. See LVW v. J (Adoption of MSVW), 965 P.2d 1158, 1161-62 (Wyo.1998). If this were not true, the lower tribunal's decision would never be subject to appellate review. See id.