Manning v. State ex rel. Wyoming Worker's Compensation Division , 1997 Wyo. LEXIS 87 ( 1997 )

LEHMAN, Justice.

This case involves the question of when a hearing examiner acquires jurisdiction to appoint an attorney and award attorney fees in a worker’s compensation case. The district court reversed the hearing examiner’s orders awarding attorney fees, finding that the Office of Administrative Hearings (OAH) acquires jurisdiction only when 1) an interested party files a written objection to a determination by the Division, and 2) the matter is properly referred to the OAH for resolution in a contested case proceeding. In addition, the district court denied attorney fees incurred in the appeal to that court.

We affirm in part and reverse in part.

Appellants Tresa Manning, the injured worker, and her attorney, Donald Painter, present the following issue for our review:

1. Whether the Office of Administrative Hearings has the authority to enter an award of attorney’s fees in this case.

Appellee Worker’s Compensation Division (Division) states the issues in this way:

A. Whether the Office of Administrative Hearings lacked subject matter jurisdiction to enter orders appointing an attorney and awarding attorney’s fees where the Division had made no final determination denying a claim for benefits, no party had entered any type of objection or requested a hearing and the matter had not been referred to the Office of Administrative Hearings for hearing.

B. Whether the district court abused its discretion in denying Mr. Painter’s application for attorney’s fees incurred in defending the orders awarding attorney’s fees entered by the Office of Administrative Hearings.

FACTS

In February 1993, Tresa Manning filed a report of injury due to problems she suffered with both wrists. The Division determined the injuries to be work related and compen-sable under the Wyoming Worker’s Compensation Act (Act). Over the course of the next several months, the Division paid medical benefits covering extensive treatment, including two surgeries on Manning’s wrists.

Manning’s condition showed little or no improvement and, in October 1994, Dr. Brown, her doctor in Denver, proposed a third surgery. At that point, Manning contacted Painter. Manning wanted to rule out the possibility that she suffered from other conditions she felt may be contributing to her problems before she submitted to another surgery, and apparently had some disagreement with the Worker’s Compensation Office in Cheyenne regarding a rule-out consultation. On December 19, 1994, Manning submitted a motion for appointment of Painter as counsel.

On January 3, 1995, Manning wrote the Division, expressing her desire for a rule-out consultation. The Division responded on January 11, 1995, informing Manning that a rule-out consultation would not be covered but the Division would pay for a second opinion if she obtained a referral from Dr. Brown. The record contains no further communications regarding a rule-out consultation.

On April 4,1995, Manning informed Painter’s secretary that she no longer needed Painter’s representation, and Painter submitted a motion and affidavit for award of attorney fees in the amount of $173.78. The Division objected, and on May 15, 1995, the Natrona County clerk of court prepared a contested case transmittal sheet on the issue of attorney fees, referring the case to the OAH. A contested case hearing on the issue of attorney fees was held before the hearing examiner on June 21, 1995. The Division argued that because there had been no denial of a claim for benefits or request for a hearing before the OAH on the rule-out consultation, the hearing examiner lacked subject matter jurisdiction to appoint an attorney and to. award attorney fees. Painter argued that the language of W.S. 27-14-602(d) permits a hearing examiner to appoint an attorney upon request, without limitation, and to allow fees at the conclusion of the proceeding.

The hearing examiner agreed with Painter and issued an order awarding attorney fees in the amount of $173.78. Manning subsequently submitted a motion for award of attorney fees incurred preparing for the contested case hearing, and the Division again objected. The hearing examiner issued an order awarding attorney fees in the amount of $112.34. The Division appealed to the district court. The district court reversed both of the hearing examiner’s orders awarding attorney fees, agreeing with the Division that the hearing examiner lacked subject matter jurisdiction to appoint an attorney prior to the initiation of a contested case.

DISCUSSION

When considering an appeal from a district court’s review of agency action, we accord no special deference to the district court’s conclusions. State ex rel. Workers’ Compensation Div. v. Fisher, 914 P.2d 1224, 1226 (Wyo.1996). Instead, we review the case as if it had come directly to us from the administrative agency. Id. The resolution of this case turns on the interpretation of the Worker’s Compensation Act. Statutory interpretation is a question of law and is reviewed de novo. Chevron U.S.A., Inc. v. State Board of Equalization, 918 P.2d 980, 983 (Wyo.1996). This court shall set aside agency action found to be “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” or “in excess of statutory jurisdiction, authority or limitations or lacking statutory right.” W.S. 16-3-114(c)(ii)(A), (C) (1990).

The governing law is that in effect on February 5,1993, the date of Manning’s injury. See State ex rel. Workers’ Compensation Div. v. Jacobs, 924 P.2d 982, 984 (Wyo.1996); Seckman v. Wyo-Ben, Inc., 783 P.2d 161,166 (Wyo.1989). We note the Act has been extensively amended in a piecemeal fashion in almost every year since Manning’s injury. As a result, determining the precise statutory language in effect at any particular moment has become an exercise in frustration. In addition, the analysis we employ in any one case may very well be of limited prospective application.

Section 27-14-602(d) (Supp.1992) provided:

Upon request, the hearing examiner may appoint an attorney to represent the employee or claimants and may allow the appointed attorney a reasonable fee for his services at the conclusion of the proceeding. ... No fee shall be awarded in any case in which the hearing examiner determines the claim to be frivolous and without legal or factual justification.

The Act is silent as to when the right to appointed counsel attaches. We do not necessarily agree with the district court that the hearing examiner does not have jurisdiction prior to the initiation of a contested case proceeding. We recently held that an employee is entitled to paid legal representation when the Division issues a final determination regarding compensability of an injury or a claim, whether or not a formal request for a contested case is filed. Painter v. State ex rel. Worker’s Compensation Div., 931 P.2d 953, 955 (Wyo.1997). The governing law in Painter was that in effect in December 1994. The Act was significantly amended in July 1994, after Manning’s injury but before the worker’s injury in Painter. However, this case does not require us to decide the exact point in time when the right to counsel attaches under the 1993 version of the Act. Here we easily conclude that the hearing examiner’s appointment was premature because Manning had not yet filed a claim for the rule-out consultation, or even undergone the examination. She merely inquired beforehand as to the compensability of such an examination.

The Act requires the Division to make determinations on claims for benefits. See generally W.S. 27-14-601 (1991). Section 27-14-602(d) prohibits the hearing examiner from awarding fees in any case in which the claim is frivolous or without legal or factual justification. The Division’s rules state that “[a] person seeking an award of benefits under the Act must submit a claim for benefits.” Wyoming Workers’ Compensation Rules, Regulations and Fee Schedules, ch. VI, § 1 (July 1993) (emphasis added). A “claim” is defined as “[a]n application for benefits under the Act using the forms provided by the division.” Id., ch. I, § 4(a). An injury report is not a claim for benefits. Id., ch. VI, § 1. Nor can Manning’s telephone call and inquiry letter to the Division be considered claims.

In order to be compensated under the Act for a rule-out consultation, Manning was required to submit a claim for benefits on a form provided by the Division. We note that Manning’s actions appear to have been completely reasonable under the circumstances, and her reluctance to undergo a third surgery without ruling out other potential causes quite possibly saved the employer and the Division money in the long run. Nonetheless, we find no language in the Act to support the position that Manning is entitled to paid legal representation on the basis that she was not satisfied with the Division’s responses to her inquiries regarding a proposed medical examination. The hearing examiner was without jurisdiction to appoint an attorney and award fees at that juncture. The district court’s reversal of the hearing examiner’s order awarding fees in the amount of $173.78 is affirmed.

Here, however, we part company with the district court. Both the district court and the Division fail to acknowledge that a contested case proceeding was initiated — on the issue of “attorney’s fees.” On April 20, 1995, the Division lodged an objection to Manning’s motion for award of attorney fees, addressed to the OAH and filed in the Seventh District Court in Natrona County. On May 15, 1995, the Natrona County clerk of court referred the case to the OAH via a contested case transmittal sheet. The transmittal sheet indicated that the employee had been notified of her right to request an attorney pursuant to W.S. 27-14r-602(d).

Once the case was transmitted to the OAH, the hearing examiner had jurisdiction to appoint an attorney, conduct the contested case hearing, and award attorney fees at the conclusion of the proceeding. Cf. Little America Refining Co. v. Witt, 854 P.2d 51, 55-56 (Wyo.1993). Indeed, a contested case hearing was held on June 21, 1995, and both Manning and the Division were represented at that hearing. Although the Division objected to the jurisdiction of the hearing examiner to appoint an attorney to represent Manning prior to the initiation of a contested case, neither party objected to the jurisdiction of the hearing examiner to conduct the contested case hearing on the issue of fees. The hearing examiner properly granted Manning’s motion for award of attorney fees of $112.34 incurred in preparing for the contested case, and we reverse the district court’s order in that respect.

By its order dated December 18, 1995, the district court denied Manning’s motion for award of attorney fees incurred in the appeal to the district court. The order stated only that there was no statutory authority for appointment of an attorney. In light of our holding that the hearing examiner acted within his jurisdiction when he awarded attorney fees for the contested case portion of this dispute, we remand to the district court with instructions to reconsider the award of attorney fees incurred in the appeal to the district court pursuant to W.S. 27-14 — 615 (Supp.1996).

CONCLUSION

We affirm that part of the district court’s order denying Manning’s attorney fees of $173.78 incurred in seeking a rule-out consultation. We reverse that part of the district court’s order denying Manning’s attorney fees of $112.34 incurred in the contested case proceeding on the issue of attorney fees. We remand the district court’s order denying attorney fees incurred in the appeal to the district court for further consideration pursuant to W.S. 27-14-615.

THOMAS, J., filed a opinion concurring in part and dissenting in part.