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Berg v. State2/25/2005
indings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a scintilla of evidence."
Newman, at (quoting State ex rel. Workers' Safety and Compensation Div. v. Jensen, 2001 WY 51, , 24 P.3d 1133, (Wyo. 2001)).
Even when the factual findings are found to be sufficient under the substantial evidence test, Newman further concludes this court may be required to apply the arbitrary-and-capricious standard as a "safety net" to catch other agency action which prejudiced a party's substantial right to the administrative proceeding or which might be contrary to the other [Wyoming Administrative Procedural Act] review standards.
Loomer v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2004 WY 47, , 88 P.3d 1036, (Wyo. 2004).
DISCUSSION
[ ] We begin with the language of Wyo. Stat. Ann. § 27-14-102(a)(xi)(D) (LexisNexis 2003), which provides:
(a) As used in this act: ..
(xi) "Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business. "Injury" does not include: ..
(D) Any injury sustained during travel to or from employment unless the employee is reimbursed for travel expenses or is transported by a vehicle of the employer.
We have construed the introductory paragraph of § 27-14-102(a)(xi) to require that there be some causal nexus between an injury and some condition, activity, environment, or requirement of the employment for an injury to be compensable under the Worker 's Compensation Act. Archuleta v. Carbon County School District No. 1, 787 P.2d 91, 92 (Wyo. 1990); see also State ex rel. Wyoming Worker 's Compensation Division v. Barker, 978 P.2d 1156, 1161 (Wyo. 1999). With regard to subsection (D), we have found that the language used is unambiguous. Lloyd v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2004 WY 85, , 93 P.3d 1001, (Wyo. 2004). Subsection (D) is the codification of "a long-standing common law rule that injuries incurred while either going to or coming from work are not compensable unless the employer has in some fashion provided the employee with transportation or has reimbursed him for the costs of those travels." Archuleta, 787 P.2d at 92-93; Claims of Naylor, 723 P.2d 1237, 1241 (Wyo. 1986). As we stated in Archuleta, in terms of our "nexus test," subsection (D) of § 27-14-102(a)(xi) "constitutes a legislative determination that, while no compensable nexus with the employment is generally present when an employee is traveling between home and work, such a nexus is created where the employer has assumed the cost of that travel." Id.
[ ] With that context in mind, we turn to Berg's arguments. He presents two arguments in justification of the hearing examiner's determination that his injury was compensable. First, he argues that the free accommodations provided by Cyclone constituted compensation or reimbursement for travel expenses under Subsection (D). Berg acknowledges that neither he nor Tintinger was reimbursed for mileage. However, he counters that the statute encompasses oth
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