Appeal from the District Court of Washakie County The Honorable Robert E. Skar, Judge
WYOMING WORKERS' SAFETY AND COMPENSATION
Before KITE, C.J., and GOLDEN, HILL, VOIGT*, and BURKE, JJ.
*Chief Justice at time of expedited conference.
HILL, J., delivers the opinion of the Court; BURKE, J., files a special concurrence, with whom VOIGT, J., joins.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Appellant, Christina Camilleri (Camilleri), seeks review of the district court's order affirming the "Findings of Fact, Conclusions of Law and Order" issued by a Medical Commission Hearing Panel (Commission). The Commission determined that Camilleri was not entitled to further benefits (after June 22, 2005), that she was at an ascertainable loss as of June 22, 2005, that her attorney was relieved from any obligation to further represent her, and that the matter was remanded to the Workers' Compensation Division (Division) to carry out the mandates of the Commission's decision. We will affirm.
[¶2] Camilleri states this issue:
Whether there is substantial evidence to support the Commission's decision to reject [Camilleri's] evidence.
The Division rephrases what it perceives as the issues in greater detail:
I. Was the Hearing Panel's decision denying ongoing medical treatment to [Camilleri] and determination that [she] was at ascertainable loss or maximum medical improvement on June 22, 2005, supported by substantial evidence?
II. Was the Hearing Panel's decision denying ongoing medical treatment to [Camilleri] and determination that [she] was at ascertainable loss or maximum medical improvement on June 22, 2005, arbitrary capricious, or otherwise not in accordance with Wyoming law?
[¶3] We will begin our discussion by explaining to the Division and the Medical Commission, as well as our readership in general, that petitions for review of agency decisions are governed by W.R.A.P. 12. The most important part of this review process is the record that is created at the agency level, because both the district court sitting as an intermediate court of appeals, and this Court as the court of last resort, rely almost entirely on the content of that record in resolving the issues raised by the petition for review of agency action. Rule 12.07 provides:
(a) Within 60 days after the service of the petition, or within the time allowed by the reviewing court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceedings under review and a separate letter of transmittal marked for the personal attention of the judge or judges of the reviewing court. The record papers transmitted to the appellate court by the agency shall be securely fastened, in an orderly manner, in one or more volumes consisting of no more than 250 pages per volume, with pages numbered and with a cover page bearing the title of the case and containing the designation 'Transmitted Record,' followed by a complete index of all papers. The agency shall provide copies of the index to the reviewing court and to the parties. Concurrently with transmitting the record, the agency shall serve notice of the transmittal on all parties.
(b) The record in a contested case shall consist of the matter required by W.S. 16-3-107(o), Wyoming Administrative Procedures Act. To the extent any matter required was not preserved by the agency and there is no record, the court may take evidence on that matter. The record in all other cases shall consist of the appropriate agency documents reflecting the agency action and its basis. By stipulation of all parties to the review proceedings, the record may be shortened. Any party unreasonably refusing to stipulate to limit the record may be disciplined in accordance with Rule 1.03. The reviewing court may require or permit subsequent additions or corrections to the record. A record remanded by a court to an agency for any reason or purpose may be recalled by the remanding court, as necessary, upon its own motion. [Emphasis added.]
Also see Wyo. Stat. Ann. § 16-3-107(o) through (r) (LexisNexis 2009).
[¶4] In this case, Volume I of the record on appeal consisted of the proceedings in the district court (intermediate court of appeals), and it was in the form required by the governing rule. The record from the agency consisted of two volumes (Volumes II and III in this Court). Volume II contained 535 pages, and they were not securely fastened (the initial pages and the ending pages were falling out of the volumes). Moreover, although we rely primarily upon common sense for this advice, a part of "securely fastened" includes a cover page made of something sturdier than ordinary typing paper. For so long as this Court can remember, this has entailed the use of "red backs," but any sturdy cover will do. Those preparing records should also take note that the rule requires that each volume contain "no more" than 250 pages. More often than not, breaking a volume at page 250 exactly may separate a document or documents in a way that does not make sense, in which case the volume break might well come before page 250 (not more than 250 pages). The record must have an index that is as complete as possible. In this case, each of the parties' disclosure statements contained numerous exhibits. Instead of the index showing where each exhibit began in the index, the index simply lumped them altogether so that Camilleri's exhibits are spread over 256 pages (they might well have been contained in a single, separate volume and as a courtesy to the courts each exhibit should have been tabbed -- exceeding the not to exceed 250 pages by 6 pages would have been an acceptable adherence to the general rule). Almost always, the transcript should be a separate volume. Here, the transcript was found at pages 774-947 of Volume III (Volume III ran from page 536-947).
[¶5] The findings in this case demonstrate that the Medical Commission has taken to heart our requirement that findings be complete and detailed; however, references to the contents of the record on appeal were not made to pages of the record, but to documents that were not indexed, and the agency record was not paginated as it accumulated. In the future we would expect that both the clerks of the district courts and the clerk of this Court, to decline to accept the record on appeal until it is assembled in accordance with the governing rule. It is incumbent upon the agencies, in the first instance, to submit a proper record, but the parties also have a responsibility to look at the record once filed and see that it is in an acceptable form.
[¶6] On September 1, 2004, Camilleri first telephonically reported an on-the-job injury to her supervisor. According to Camilleri, the injury occurred on that date at about noon, at her place of employment, the Worland Senior Center (Center). A written report, prepared on September 16, 2004, was submitted to the Workers' Safety and Compensation Division (Division) by Camilleri and her supervisor on September 16, 2004, and it was received there on September 20, 2004.
[¶7] Camilleri was employed at the Center as a licensed practical nurse, and her co-employee Benita Bauer (Bauer), was the cook there. In a nutshell, Camilleri claimed that Bauer ran into her, perhaps deliberately, left-shoulder to left-shoulder, in a narrow hallway at their workplace. Although Camilleri had some predisposing bodily infirmities, she asserted the shoulder blow delivered by Bauer was forceful enough to cause the immediate onset of pain to her left shoulder and her neck. Her pre-existing health problems did not include any problem with her left shoulder. The problems with Camilleri's neck had resolved by the time of hearing and were not an issue at the hearing into this matter and any injury that may have occurred to her neck is not an issue in this appeal. However, her shoulder continued to cause her great pain, and so far as the record shows, that continues.
[¶8] At the hearing, Camilleri's claims were that she was entitled to temporary total disability payments for the period from June 22, 2005 through July of 2006, during which time she was unable to work because of the continued problems she had with her shoulder. In early July of 2006, Camilleri found suitable employment that was within her physical capabilities at the Wyoming Boys School near Worland. She also claimed she was entitled to benefits for surgical treatment that had been recommended by her attending physician, James Randolph, M.D, an orthopedic surgeon.
[¶9] Throughout the early months of her treatment, Camilleri's medical care providers were unable to ascertain the cause of the pain in her shoulder and most of them perceived that Camilleri displayed a sense of pain that was not consistent with her claimed injury. Eventually she was referred to Dr. Randolph, who was still treating her as of the date of the hearing. She opted for conservative, non-invasive treatment, and Dr. Randolph respected her concerns and decisions in that regard, especially because early on Dr. Randolph warned that invasive treatment could worsen, not lessen, her pain.
[¶10] Camilleri received benefits from the date of injury until June 22, 2005. By letter dated June 22, 2005, the Division informed Camilleri that it would not approve payment of benefits after June 22, 2005. By letter dated June 29, 2005, Camilleri's attorney asked to be appointed to handle her client's petition for review of that decision. Apparently that appointment was made, and Camilleri has continued to be represented by counsel throughout this process. In that request, Camilleri indicated that the matter should be assigned to the Medical Commission.
[¶11] In a letter dated July 13, 2005, a claims analyst for the Division referred this case to the Office of Administrative Hearings (OAH) pursuant to Wyo. Stat. Ann. § 27-14-601(k)(v) (LexisNexis 2009) which provides:
§ 27-14-601. Payment or denial of claim by division; notice; objections; review and settlement of claims; filing fee; preauthorization of hospitalization or surgery.
(a) Upon receipt, the division shall review the initial injury reports to determine if the injury or death resulting from injury is compensable and within the jurisdiction of this act. No subsequent claim for compensation under this act shall be approved if the division determines the injury or death is not compensable and under the jurisdiction of this act or if the employer states on his injury report that the injury is not compensable, until a determination is rendered by the division. The division shall provide notice of its determination to the employee, employer and the claimant. ..
(d) Upon receipt of a claim for impairment, disability or death benefits filed under W.S. 27-14-403(g) or 27-14-501(e) and (f) and if the initial injury or death resulting from injury is determined compensable and within the jurisdiction of this act, the division shall determine if the injured employee or his dependents are eligible for benefits and shall approve or deny the claim in accordance with this act. If a claim is approved, the division shall determine the amount of the award for compensation in accordance with W.S. 27-14-403 through 27-14-406 and 27-14-408, if applicable. The division shall provide notice of any determination under this subsection to the employer, employee and the claimant.
(e) In accordance with this act, the division shall by rule and regulation establish necessary procedures for the review and settlement of the compensability of an injury or death resulting from injury and of claims filed under this act through interviews with employees, employers and health care personnel or through review of written reports. Nothing in this act shall prohibit the employer or division from reaching a settlement of up to two thousand five hundred dollars ($2,500.00) under this subsection in any one (1) case without an admission of compensability or that the injury was work related. ..
(g) No claim for benefits under this act shall be denied based solely on the failure of the employer to have complied with the requirements of this act. ..
(k) Determinations by the division pursuant to this section and W.S. 27-14-605 shall be in accordance with the following:
(i) The initial review of entitlement to benefits pursuant to subsections (a) and (e) of this section shall be made by the division within fifteen (15) days after the date the injury report or claim is filed. Following initial review, the division shall issue a final determination or if a final determination cannot be made based upon available information at that time, the division may issue a request for additional information as necessary;
(ii) Following issuance of a request for additional information under paragraph (k)(i) of this section, the division shall investigate the matter and issue its final determination within forty-five (45) days after issuing the request;
(iii) Notice of a final determination issued by the division under this subsection shall include a statement of reasons and notice of the right to a hearing;
(iv) Any interested party may request a hearing before a hearing examiner on the final determination of the division by filing a written request for hearing with the division within fifteen (15) days after the date the notice of the final determination was mailed by the division. If the division has not rendered a final determination within sixty (60) days following the date the claim was filed, any interested party may request a hearing before a hearing examiner in the manner prescribed by this paragraph. If the written request for hearing is sent to the division by certified or registered mail, postage prepaid, return receipt requested, proof of such mailing within the time provided by this subsection with a receipt signed by an agent of the state of Wyoming shall be presumed to be timely filing of the request with the division;
(v) Upon receipt of a request for hearing, the division shall immediately provide notice of the request to the appropriate hearing authority as ...