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Phillips v. Tic--The Industrial Co. of Wyoming4/8/2005
rounds of mistake or fraud. The division may, upon the same grounds and within the same time period, apply for modification of medical and disability benefits to a hearing examiner or the medical commission, as appropriate.
(b) Any right to benefits shall be terminated and is no longer under the jurisdiction of this act if a claim for any benefit is not filed with the division within the four (4) year limitation prescribed under subsection (a) of this section.
See State ex rel. Wyoming Workers' Safety and Compensation Div. v. Henriksen, 2001 WY 42, 7, 21 P.3d 1185, 1186-87 (Wyo. 2001); In re Osenbaugh, 10 P.3d 544, 549-50 (Wyo. 2000); In re Hernandez, 8 P.3d 318, 322-23 (Wyo. 2000); and Parnell, 735 P.2d at 1368-69.
[ ] We affirm.
KITE, Justice, dissenting.
[ ] I cannot agree with the majority's resolution of this case. There is no dispute that the fusion resulted from Mr. Phillip's work injury . The only way the hearing examiner could conclude otherwise was to find that the fusion was unnecessary. Yet that finding does not appear in the hearing examiner's order.
[ ] Moreover, the hearing examiner's findings of fact and conclusions of law are inconsistent in that they state that Mr. Phillips had an ascertainable loss "unless he chose to undergo future surgery." He did choose to undergo future surgery. Therefore, pursuant to the findings of fact, he did not have an ascertainable loss.
[ ] It may be that the videotape recording and some of the testimony convinced the hearing examiner that the surgery was unnecessary. If so, a finding to that effect should appear in the order. As we said in State ex rel. Dept. of Transportation v. Legarda, 2003 WY 130, , 77 P.3d 708, (Wyo. 2003), to survive judicial review the record of a contested agency action must contain such factual findings as would permit a court to follow the agency's reasoning from the evidentiary facts on record to its eventual legal conclusions. When an agency does not set forth sufficient findings to permit this Court to follow its reasoning, we cannot uphold its decision. The hearing examiner's findings in Mr. Phillips' case do not support the conclusion that he had an ascertainable loss. For this reason, I would reverse the hearing examiner's determination.
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