author: GOLDEN, Justice.

text:
    JK, as next best friend of her minor child and grandchild, DK and Baby X, Appellant (Petitioner), v. MK, DK, and Ellen McGEE, as an individual and in her official capacity, and The Wyoming Children's Society, Appellees (Respondents).
    No. C-99-1.
    Supreme Court of Wyoming.
    May 2, 2000.

      Representing Petitioners: Joe A. Baca and Sue Davidson of Aspen Ridge Law Offices, P.C., Cheyenne, Wyoming. Argument by Mr. Baca.
    Representing Respondents: Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, Wyoming.
    Representing The State of Wyoming: Gay Woodhouse, Attorney General; Michael L. Hubbard, Deputy Attorney General; Harry D. Ivey, Assistant Attorney General; Christopher Petrie, Assistant Attorney General. Argument by Mr. Petrie.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.
   GOLDEN, Justice.

After signing a consent to adoption and relinquishment of child custody, the minor natural father (Father) immediately notified Appellee Wyoming Children's Society (WCS) of his intent to revoke his consent. Father's mother, on behalf of her son and the baby (collectively, Petitioners), began judicial proceedings to revoke Father's consent and relinquishment and obtain custody of his newborn son, Baby X. He joined individuals Ellen McGee of WCS, the natural mother (Mother), and natural maternal grandmother (collectively, Respondents) in his suit, but never served the prospective adoptive parents. Months later, after the adoption decree was apparently finalized, the district court granted summary judgment to appellees ruling that, as a matter of law, no statutory grounds existed for revoking Father's consent. Petitioners appeal.

We dismiss those issues requiring joinder of the prospective adoptive parents and affirm the grant of summary judgment on the issue of whether fraud or duress existed requiring Father's consent to be set aside.

ISSUES

Petitioners present these issues for our review:

I. Was Father's consent to adoption given under duress or as a voluntary, knowing waiver, at a time when he was competent to give consent as required by law?
II. Does W.S. § 1-22-109 violate the U.S. and Wyoming Constitutions or was it unconstitutionally applied in the facts of this case?
III. Should guardians ad litem be appointed to represent minors in adoption cases?

Respondents present this single statement of the issue:

1. Did the district court err in granting summary judgment to all of the Respondents on all of the claims asserted by the Petitioners in their Amended Petition?

The State of Wyoming filed a brief stating these issues:

I. Whether Appellant was denied procedural due process by operation of Wyo. Stat. § 1-22-109.
II. Whether Appellant was denied substantive due process by operation of Wyo. Stat. § 1-22-109.
III. Whether Wyo. Stat. § 1-22-109 violates the U.S. and Wyoming Constitutional rights to equal protection.

FACTS

Because this appeal is from an order of summary judgment, we review the facts in the light most favorable to Petitioners. In Re HC, 983 P.2d 1205, 1207 (Wyo.1999).

Seventeen-year-old Father suspected that his eighteen-year-old girlfriend (Mother) was pregnant in early February of 1998, and confronted her about it. Mother denied she was pregnant. On the morning of February 23, 1998, Mother picked up Father at his house before school began and asked him to drive her to a hospital in Ft. Collins, Colorado, because she was experiencing stomach pains. He took her to the emergency room in Ft. Collins and doctors informed him that Mother was pregnant and the birth was imminent. Mother delivered a son that afternoon. On the day of the birth, a social worker visited the couple and discussed the possibility of adoption. During that meeting, Father believed that the social worker informed them that if the couple did decide to put the baby up for adoption, they would have up to six months to change their minds and get the baby back. Also on that day, the maternal and paternal grandmothers arrived at the hospital and more discussions concerning adoption were held with the couple. The paternal grandmother contacted Father's aunt in Salt Lake City and asked if she would consider adopting the baby; however, the aunt declined. Late that night, Father drove back to Cheyenne to get clothes for both him and Mother, returned to the hospital, and spent the night in Mother's hospital room.

The next day, Father did not go to school and stayed with Mother. Another social worker arrived and offered free counseling to the Mother and talked to both about adoption. At Mother's request, that social worker contacted a child adoption agency in Cheyenne, Wyoming. Father testified in his deposition that this social worker also informed them they would have a six-month period for changing their minds.

Ellen McGee from the Wyoming Children's Society (WCS) arrived at the hospital about midday of February 24. She brought profiles of adoptive families, a notary, and consent and relinquishment of custody papers for the couple to sign. After speaking to the couple about several of the profiles, Ms. McGee asked if the couple was ready to sign the papers. The couple declined and stated that they needed more time to think about it. The maternal grandmother arrived, and Ms. McGee stated that she would be back in an hour and left. She returned in less than an hour, primarily discussed adoption with the maternal grandmother while the couple listened, but was told that the couple needed more time and more profiles. Ms. McGee offered to place the baby in foster care, and Mother informed her that the baby would be left in the hospital. Mother preferred that the baby stay at the hospital for the full forty-eight hour post-birth time that was routinely recommended for newborns. In her affidavit, the maternal grandmother states that she was assured by the hospital that the baby would not be considered abandoned for this time period. Father left the hospital to go to work, and Mother was discharged and left the hospital with the maternal grandmother and returned home to Cheyenne.

Late in the evening of February 24, Mother, the maternal grandparents, Father, and the paternal grandmother met at Mother's house and further discussed the adoption. Mother and Father told their parents that they needed more time, and it was agreed that more time would be given to them. A few minutes later, Mother's parents had the couple rejoin them for further discussions. Mother stated that she wanted to give the baby up for adoption, and Father stated that he thought adoption would be best. The paternal grandmother apparently indicated that she disagreed with adoption but would not interfere. The maternal grandmother stated that she would contact WCS, and it was agreed that Father would return the next day. Father and his mother left to return home. Father told his mother that he wanted to keep the baby, but that he had told Mother he would support her decision.

Father did not go to school again on February 25, and he returned the next morning to Mother's home without the paternal grandmother. He learned that Ms. McGee was expected and waited with Mother and her parents for Ms. McGee to arrive. He did not contact his mother, and she was not present that morning. Father testified that during the wait, the maternal grandmother and Mother discussed the good choice that had been made, but Father did not participate. Ms. McGee and another woman arrived and, in his affidavit, Father claims that Ms. McGee told Father that if he did not remove the baby from the hospital, the state of Colorado was going to take the baby as an abandoned baby. Ms. McGee read a relinquishment of custody and consent to adoption form to the couple, pointing out variations between the two forms, and then had Father and Mother each sign a form. At some point, the couple selected the adoptive family, who remained nameless. Father could not remember whether it was before or after he signed the consent.

In his deposition, Father testified that he believed that he was releasing and relinquishing his child to foster care to avoid abandonment and was consenting to adoption by the family selected at a later time. He testified that he believed that the actual adoption papers would be signed later. Father was not given a copy of the papers he had signed. At the deposition, Father was asked, "Do you understand what this statement means, 'I acknowledge and agree that this relinquishment and consent terminates all rights which I have to this child"" Father replied, "I'm giving up my rights for the baby from what I understand."

After he signed these papers, Father informed Mother that he believed the baby should not be placed in foster care and given up for adoption. He believed that Mother agreed and was going to arrange to get the baby back. Later, the couple and the maternal grandmother shopped for and purchased baby clothes to take to the adoption agency. Father thought the clothes were purchased for the purpose of keeping the baby and told his mother that they would be picking up the baby that day. On February 27, Father, Mother, and the maternal grandmother delivered the baby clothes to the agency, and the couple held the baby. Mother and Father signed a form that required the adoptive parents to provide pictures of the baby to the birth mother several times a year until age five and then every six months until the age of majority. This form was signed with the first names of Father and Mother and the adoptive parents. The date beside all four names is February 27, apparently the date that the adoptive parents were given physical custody of the baby. At the adoption agency, Father learned that Mother still intended to give the baby up for adoption. He left the agency, contacted his mother and asked her to intervene. Father, his mother, and brother went to the agency and asked Ms. McGee to return the baby to him. Father was told that the baby had already been placed with the adoptive family. Ms. McGee refused to assist Father in the return of his baby, and angry words were exchanged.

Father hired legal counsel, and on March 4, 1998, counsel filed a petition requesting the district court to establish Father's paternity, award him custody of the minor child, establish child support, revoke and rescind the Relinquishment of Parental Rights and Consent to Adoption, declare Wyo. Stat. Ann. § 1-22-109(d) unconstitutional, issue a temporary restraining order and enjoin adoption proceedings which have been or may be initiated with respect to Baby X, require Baby X to be turned over to Father pending further hearing, and requested attorneys' fees and costs and money damages for negligent and/or intentional infliction of emotional distress and conspiracy. This petition was brought against Mother, the maternal grandmother, Ms. McGee, individually, and WCS. The adoptive parents were not joined in the action.

In the petition, Father alleged that WCS had told him that the baby was in the custody of "Baby X's prospective adoptive parents." An "Affidavit in Compliance with W.S. § 20-5-110" was filed by Father stating that this unknown couple had physical custody of the child. On March 5, 1998, Father filed a motion to appoint a guardian ad litem for Baby X. On March 17, a response was filed to the petition, admitting that Baby X had been placed in the custody of the prospective adoptive parents. Affirmative defenses alleged were a failure to state a claim upon which relief can be granted, plaintiffs do not have standing to bring the action, and the petition was unsigned by the attorney of record. Father filed an amended petition on March 17, 1998, that included John Doe 1 and Jane Doe 1 and petitioned for a writ of habeas corpus. In his amended petition Father alleged that he was informed Baby X had been placed in the custody of Baby X's prospective adoptive parents, John Doe 1 and Jane Doe 1, who had not been identified as of March 18, 1998. In their response to the amended petition, Respondents denied this allegation in its entirety despite having admitted in the earlier answer that the baby was in the physical custody of the prospective adoptive parents. Petitioners filed an attorney's consent to appointment as guardian ad litem, and Respondents objected to the appointment of a guardian ad litem. On April 16, 1998, the State, which was served but not joined as a party, filed its response to the constitutional claim.

On May 11, 1998, the district court denied the motion to appoint a guardian ad litem for the baby. Apparently, this order followed a hearing; however, the transcript has not been included in the record. On July 6, 1998, the district court notified the parties that it intended to dismiss the petition sua sponte. Respondents WCS and Ms. McGee filed a motion for summary judgment on July 10, 1998, and Mother and the maternal grandmother filed a motion for summary judgment on July 27, 1998. Apparently in the interim, depositions were taken; however, only selected portions have been made a part of the record. On August 4, 1998, Petitioners filed a motion to amend the petition, filed an amended petition that did not include the prospective adoptive parents as parties, renewed their motion to appoint a guardian ad litem for Baby X, filed a motion to appoint a guardian ad litem for the father, a motion to require production of hospital records and release, a motion to order notice in adoption proceedings, and a combined motion opposing the motions to dismiss and for summary judgment.

Although the record does not contain the transcript, apparently a hearing was held on these motions, and on September 29, 1998, the district court issued an order allowing the amended petition, dismissing it with prejudice and granting summary judgment to Respondents, denying notice of adoption proceedings and granting costs to Respondents. Petitioners did not file any motions to stay adoption proceedings pending appeal, but filed a notice of appeal that did name John and Jane Doe 1 on October 29, 1998. On appeal, Petitioners' brief presents neither issue nor argument on their money damages claims, and they have apparently abandoned them. Oral argument was held on September 22, 1999, and at that time, this Court was informed that the baby's adoption had been finalized in August of 1998. The adoptive parents have never been identified or served in any of the above actions.

DISCUSSION

Adoption was not known at common law and is a creature of statute to be strictly construed. Adoption of MM, 652 P.2d 974, 979 (Wyo.1982). The basic principles permeating the law of adoption are fundamental liberty interests and the best interests of the children. Matter of TR, 777 P.2d 1106, 1118 (Wyo.1989) (Golden, J., dissenting). Under Wyoming's statutory adoption scheme, natural parents may consent to adoption and relinquish custody of their child after the birth. Wyo. Stat. Ann. § 1-22-109 (LEXIS 1999). Their consent is irrevocable unless obtained by fraud or duress, and the consent of a minor parent is valid and may not be revoked solely because of minority. Wyo. Stat. Ann. § 1-22-109(d) (LEXIS 1999).

In Wyoming, a natural parent's attempt to revoke his consent to adoption and relinquishment of custody is considered a threshold issue to be resolved before entry of a final adoption decree. We have said that until the threshold question of consent is resolved the identity of the adoptive parents is irrelevant as is the fitness of the adoptive parents and the best interests of the child. Matter of Adoption of RHA, 702 P.2d 1259, 1264 (Wyo.1985). In Matter of Adoption of MSVW, 965 P.2d 1158 (Wyo.1998), this Court held that a natural father has the right to attend the adoption hearing for the opportunity to contest the validity of his consent when the claim is made before the entry of the final adoption decree. Id. at 1164. In this case, following a hearing on the issue of whether his consent was valid, Father's motion to attend the adoption proceedings was denied. This Court has previously held that onee the issue of consent has been resolved, under Wyoming's statutory scheme, the natural father is "a stranger to the adoption proceedings." Adoption of RHA, 702 P.2d at 1264. On appeal, Father presents the issue of whether his consent is irrevocable under Wyoming statute.

Petitioners, however, did not join or serve the prospective adoptive parents in their final amended petition. Because resolution of the consent issue presumably adjudicates the rights of the prospective adoptive parents, it would appear they are indispensable parties as to all issues presented by Petitioners. Unfortunately, the record is not adequate to properly inform us as to why the prospective adoptive parents are not parties. At oral argument, Petitioners claimed that WCS refused to divulge their names, making service impossible. Also at oral argument, counsel for the appellees informed the Court that the adoption of the baby had been finalized in another jurisdiction, presumably out of state; however, the final adoption decree is not part of the record, and, therefore, not properly before us. Petitioners seem to be aware of the final adoption decree and have pursued their appeal, and we have, therefore, decided to address the threshold issue of whether Father may revoke his consent under the statutes. Petitioners have also pursued their constitutional and guardian ad litem issues, but we find that their failure to join the adoptive parents precludes our review of those issues. We first address this issue of indispensable parties.

Indispensable Parties

Adoption of RHA permits us to determine the validity of a natural parent's consent under Wyoming statute without regard to whether the adoptive parents have been joined. Consent of the natural parent to the adoption of the child is a jurisdictional prerequisite to a valid and binding decree of adoption, and, ordinarily, consent proceedings are the first part of a bifurcated procedure for an adoption under the jurisdiction of a Wyoming court. See Adoption of AMD, 766 P.2d 550, 552 (Wyo.1988). Where, as here, the parties do not present the court with a final adoption decree because it has apparently been entered in another jurisdiction, we are limited to the Petitioners' request that we determine whether, as a matter of law, Father's consent is irrevocable under Wyoming statute. Father's other claims that the statute is unconstitutional and the district court erred in failing to appoint guardian ad litems for him and the baby raise the issue of whether the claims must be dismissed because the adoptive parents are indispensable parties and were not joined in the final amended petition and have not been properly served with this appeal. The issue of indispensable parties is one which this Court may raise upon its own motion. State, By and Through Christopulos v. Husky Oil Co. of Delaware, 575 P.2d 262, 268 (Wyo.1978).

In this appeal, it is not clear to us that the final adoption decree was entered outside of Wyoming, but we note that usually adoption decrees are issued under the particular state's own statutory scheme. If in fact the adoption has been accomplished in another state, presumably the Petitioners will have the option of setting aside the adoption under the consent revocation procedures or other applicable sections of that state's statutory scheme. However, neither the record nor the parties have fully informed this Court of the exact nature of their relief sought in light of the finalized adoption decree in another jurisdiction, and we therefore proceed as if no finalized adoption decree has issued.

Wyoming Rule of Civil Procedure 19 requires "[JJoinder of persons needed for [a] just adjudication." A court must first determine if the person in question meets certain criteria, and, if so, the person is considered a "person to be joined if feasible." W.R.C.P. 19(a). In cases where joinder is not feasible, the court must then examine four considerations to determine whether "in equity and good conscience" the action should proceed. W.R.C.P. 19(b). If, in equity and good conscience, the action cannot proceed without the person in question, that person is considered indispensable and must be joined or dismissal will result. Lamb v. Wyo. Game and Fish Comm'n, 985 P.2d 433, 439 (Wyo.1999); W.R.C.P. 19(b); Albrecht v. Zwaanshoek Holding En Financiering, B.V., 762 P.2d 1174, 1178 (Wyo.1988); Reilly v. Reilly, 671 P.2d 330, 332 (Wyo.1983). Rule 19(c) states:

Pleading reasons for nonjoinder.-A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivisions (a)(1) and (a)(2) hereof who are not joined, and the reasons why they are not joined.

The proper procedure for complying with Rule 19(c) is contained in W.R.C.P. Form 26:

Allegation of reason for omitting party.
When it is necessary, under Rule 19(c), for the pleader to set forth in his pleading the names of persons who ought to be made parties, but who are not so made, there should be an allegation such as the one set out below:
John Doe named in this complaint is not made a party to this action, because he is not subject to the jurisdiction of this court.

Petitioners' final amended petition did not name Jane and John Doe as a party and did not assert any reason for not joining them.

We stated in Rivermeadows, Inc., v. Zwaanshoek Holding & Financiering, B.V., 761 P.2d 662, 668 (Wyo.1988):

This Court has long recognized the traditional definition of an indispensable party with regard to W.R.C.P. 19(a). In American Beryllium & Oil Corporation v. Chase, 425 P.2d 66, 68 (Wyo.1967) (quoting from Amerada Petroleum Corporation v. Rio Oil Co., 225 F.Supp. 907, 910 (D.C.Wyo.1964)), quoted in Reilly v. Reilly, 671 P.2d 330, 332 (Wyo.1983), we stated:
"An indispensable party has been defined as one without whose presence before the court a final decree could not be made without either affecting his interest or leaving the controversy in such a condition that its final determination might be wholly inconsistent with equity and good conscience. Whether or not a person is an indispensable party cannot be determined by a prescribed formula because the facts peculiar to each case are determinative of that question."

See also Johnson v. Aetna Casualty & Surety Co. of Hartford, Comm., 608 P.2d 1299, 1305 (Wyo.1980), Albrecht, 762 P.2d at 1178. A series of four tests are set forth in these cases, a negative response in any one of which renders the absent party indispensable. These tests are:

1. Is the interest of the absent party distinet and separable?
2. In his absence can the court render judgment between the parties before it?
3. Will the decree made in his absence have no injurious effect on his interests?
4. Will the final determination in his absence be consistent with equity and good conscience?

Oxley v. Mine and Smelter Supply Co., 439 P.2d 661, 663 (Wyo.1968). We do not see that any of these questions can be answered in the affirmative and decide that the prospective adoptive parents are indispensable parties whose joinder is required for the constitutional and guardian ad litem issues.

Having decided that joinder is necessary, we must determine whether joinder is feasible, and if not, whether equity and good conscience allows us to proceed. It would appear that joinder of the adoptive parents was possible. At the time this action was commenced, the baby was in the physical custody of the adoptive parents, and apparently no adoption petition had been filed in a Wyoming court. Petitioners had several procedural routes by which to locate the baby. Because Petitioners had requested custody and filed an affidavit of compliance with Wyo. Stat. Ann. § 20-5-110 (LEXIS 1999), Wyo. Stat. Ann. § 20-5-111 (LEXIS 1999) required the district court to order service on the party having physical custody of the child; however, Petitioners never requested that action by the district court. Petitioners requested the district court to enjoin adoption proceedings but failed to request a hearing on the matter and never acted upon the petition for writ of habeas corpus. The record shows that the Petitioners did not serve any interrogatories on WCS to determine the child's whereabouts or inquire as to whether Wyo. Stat. Ann. § 14-5-101 (LEXIS 1999) had been implicated. Whether these avenues remain open to Petitioners cannot be determined upon the record that we have, but the record does not permit us to determine that joinder is not feasible. We dismiss the appeal as to the constitutional and guardian ad litem issues. Petitioners may amend their petition and proceed with discovery to determine the location of the child and the status of the adoption proceedings.

Revocation of Consent

Father contends that his consent should be revoked under the statute for fraud, duress, and for minority created by the following cireumstances as set forth in his pleading:

27. [Father] signed a form under fraud or duress and without knowledge of what he was doing and involuntarily, thinking that he had 6 months within which to exercise the option to rescind the form he had signed.
28. [Father] executed the form on February 25, 1998 without having the opportunity to deliberate and reflect in the decision and without the opportunity to seek independent counsel, and to ponder the alternatives available as required by law, the failure of which also amounts to duress and fraud in light of the force of cireumstances represented by the facts of the case and averments set forth herein by paragraphs 1 et. seq.;
29. Respondent McGee is not an attorney authorized to practice law. She is [a] layman. Respondent McGee, as an individual and a representative of Respondent, Wyoming Children's Society, engaged in the unauthorized practice of law at all times and in all instances when she gave [Father] legal advice about the adoption process in Wyoming and in having obtained his signatures to the consent form.
30. Ellen McGee told [Father] he would be considered to have abandoned his infant son within forty-eight hours of his birth if a decision as to his son's placement had not been made.

Duress

We have said that "[dJjuress exists whenever one, by the unlawful act of another, is induced to perform some act under circumstances which deprive him of the exercise of free will." Adoption of MM, 652 P.2d at 978. Generally, "where the natural parent has executed the consent after having been given an opportunity to deliberate and reflect on the decision and to seek independent advice and counseling and to ponder the alternatives available to [him], duress does not exist." Id. at 978. In Matter of TR, 777 P.2d at 1111, we discussed other courts' recognition of duress caused by the "force of circumstances," but the majority did not apply it. Father contends that the totality of cireum-stances here constituted duress under either definition.

Father alleges the totality of the cireum-stances from the day of the birth when he learned he was to be a father until he signed the adoption papers placed him under duress. We find that the cireumstances from the time of the birth until Father signed the papers cannot be characterized as wrongful or unlawful acts constituting legal duress. Father and Mother first explored the notion of adoption by their own volition on the day of the birth, independently requested WCS contact them, independently requested more profiles of adoptive families, studied and selected a family, and both continued to examine that option until each signed their consent. If Father believed that he had six months to change his mind about adoption, Father has been very clear in the record to note that this mistake was caused by misinformation from Colorado social workers and not by WCS or Ms. McGee. Under Wyoming statute, mistake is not cited as a reason that would vitiate consent, particularly in the case where Father's mistake was not known or should not have been known by Ms. McGee or WCS. Wyo. Stat. Ann. § 1-22-109 (LEXIS 1999); Nee also Matter of TR, 777 P.2d at 1111 (plurality opinion stating that undue influence was not a statutory grounds for revoking consent.)

Fraud

We have said that "when fraud is alleged-in the context of an adoption consent-the representations must relate to a past or existing fact, and may not ordinarily be predicated upon a representation which relates to the future." Adoption of D.P., 583 P.2d 706, 708 (Wyo.1978). However, fraud must be plead with particularity. W.R.C.P. 9. Respondents concede that fraud was plead properly in Father's amended petition. Fraud must be established by clear and convincing evidence and will not be imputed to any party when the facts and cireumstances out of which it is alleged to arise are consistent with honesty and purity of intention and a person's good character. Adoption of Hiatt, 69 Wyo. 373, 382-83, 242 P.2d 214, 216 (Wyo.1952).

In his affidavit, Father claims that on the morning he went to Mother's house for further discussions with Ms. McGee, she told him that "if the baby was not taken away from the hospital, the State would take the baby as an abandoned baby." Father characterizes this statement as a "lie" and, relying upon In Re Borton Estate, 393 P.2d 808 (Wyo.1964), claims that Ms. McGee's conduct throughout was "constructive fraud consist[ing] of all acts, omissions, and concealment involving breach of a legal or equitable duty resulting in damage to another, and exists where such conduct, although not actually fraudulent, ought to be so treated when it has the same consequence and legal effects." Father states that he then signed the papers, believing he was placing the baby in foster care and the actual adoption papers would be signed later. In her defense, Ms. McGee claimed at oral argument that this statement is a true and honest statement and argues that Father has admitted neither she nor the other WCS agent told Father he was placing the baby in foster care or that he was not signing "actual adoption papers."

The night before the statement was made and with his mother present, Father had agreed that the baby should be placed for adoption. The maternal grandmother told Father that she would contact Ms. McGee the next morning, and Father arrived at Mother's home the next morning and stayed to meet with Ms. McGee. Father claims that he stayed to look at additional profiles and signed the papers because Ms. McGee told him that the baby would be considered abandoned if he did not. Father provides no proof that Ms. McGee's statement was a lie, but even assuming that Ms. McGee lied when stating that the baby would be considered abandoned that day, and she did it with the intent to have Father sign the papers at that time in the absence of his mother and without further reflection, whether these cireum-stances and statements constitute fraud must be examined in conjunction with the consent form signed by Father. Ms. McGee read a consent form to Father that plainly stated the baby would be placed for adoption, Father's rights to the baby would be terminated, and custody would be relinquished. In his deposition, Father stated that he understood that he was giving up his rights to the baby when he signed the form. He does not allege that Ms. McGee told him that he could change his mind later. We find that Father signed the documents under the mistaken belief that he could revoke his consent within the next six months, and his mistaken belief that his signature was not final is insufficient to revoke his consent. Under these circumstances, because Ms. McGee did not know and had no reason to know of Father's mistaken belief, our standard of review requires that we view her statement as informational, complete, and not fraudulent.

Father contends that, as a minor, his consent was not knowing and voluntary because he received advice from WCS, and not independent representation, while under pressure from Ms. McGee and the maternal grandmother, and because he consented so quickly after the birth. Further, he claims that his mistaken belief that he could revoke his consent within six months proves that his consent was not knowingly and intelligently made after examining all of the options available to a minor unprepared to support the baby. Father is essentially arguing that WCS should have advised him to seek independent legal counsel who could have plainly explained his legal rights to him under Wyoming statute and its failure to provide that notification to a minor provides grounds for this Court to find his consent was involuntary and should be revoked. Further, he asks us to rewrite the statute and provide for the right to have some time period after the birth, whether a minor or an adult, before consent is permitted. Both of these concepts are embodied in the Uniform Adoption Act and the statutes of many other states; however, Wyoming statutes provide for neither. 2 Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases, Uniform Adoption Act, at 78 (1999 Cum.Supp.App. 14-2). Although Father complains that the statute's design works to the disadvantage of minors freely and knowledgeably consenting, we have said that unless constitutional or judicial decision says otherwise, the adoption statutes represent public policy in this area. Adoption of MM, 652 P.2d at 978. The legislature, therefore, has the prerogative of permitting a minor to consent immediately after birth and with the independent representation of his own choosing, whether legal counsel, family or others, and forgo independent legal representation. Father's minor status does not permit revocation of his consent.

Father also states that "Father was not given sufficient opportunity to reflect on his decision and to seek independent advice and counseling and to ponder the alternatives which the adoption specialist, Ellen McGee, had a duty to assure would occur." He provides expert testimony in the form of an affidavit to support his position that Ms. McGee owed Father a duty and breached that duty in various ways. Presumably, Father is referring to a tort duty, but does not specify what tort and does not provide further argument or authority for this proposition. Whether an adoption specialist owes a duty to the natural father presents a cause of action not recognized in Wyoming and whether it should be recognized presents a question of law that we have not yet decided. Father provides no argument or authority that such a duty should be recognized in this jurisdiction, and we are unable to further consider the issue.

CONCLUSION

Under Wyoming law, Petitioners' failure to join and serve the adoptive parents limits us to deciding whether summary judgment was properly granted to respondents on the threshold issue of whether Father can revoke his consent under Wyo. Stat. Ann. § 1-22-109. Under the statute, consent may be revoked only for fraud or duress, and absent those cireumstances, is irrevocable. Father's consent to the adoption was not secured by either fraud or duress and is irrevocable under Wyoming statute. All other claims are dismissed, allowing Father to pursue all other claims in the appropriate jurisdiction.

      . Interstate Compact on Placement of Children. WCS claims that it is a private agency. In Adoption of MM, 652 P.2d at 981, we stated that this statute applied to private agency placements.

      . Father began his analysis by informing us that the consent form Father signed was a contract and subject to the contract defenses of mistake, fraud, duress and minority. We have said that when a party seeks damages in tort against the other party to a contract, the general rule is that tort liability can only result when a contracting party has a duty independent of its contractual duties. JBC of Wyoming Corp. v. City of Cheyenne, 843 P.2d 1190, 1197 (Wyo.1992) (citing Preferred Marketing Assoc. Co. v. Hawkeye Nat'l Life Ins. Co., 452 NW.2d 389 (Iowa 1990)). The court must decide if a duty exists as a matter of law. Hamilton v. Natrona County Educ. Ass'n, 901 P.2d 381, 384 (Wyo.1995). Essential to any negligence cause of action is proof of facts which impose a duty upon defendant. See, ABC Builders, Inc. v. Phillips, 632 P.2d 925, 931 (Wyo.1981). The question of the existence of a duty is a matter of law for the court to decide. Id. at 932. A duty exists where, "upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obli gation upon one for the benefit of the other-or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant." Goodrich v. Seamands, 870 P.2d 1061, 1064 (Wyo.1994) (quoting W. Page Keeton, Prosser and Keetor on the Law of Torts § 37, at 236 (5th ed.1984)).


source: Caselaw Access Project

author: MACY, Justice.

license: Public Domain

text:
    Marlin D. RICHARDSON and Lisa H. Richardson, Appellants (Plaintiffs), v. Lynn F. HARDIN and Charolette M. Hardin, husband and wife; Robert Bole and Stanley B. Parker, d/b/a Cowboy Realty, Appellees (Defendants). Lynn F. Hardin and Charolette M. Hardin, husband and wife, Appellants (Defendants), v. Marlin D. Richardson and Lisa H. Richardson, Appellees (Plaintiffs).
    Nos. 99-69, 99-70.
    Supreme Court of Wyoming.
    May 3, 2000.

      Representing the Richardsons: Virgil G. Kinnaird and Fred R. Dollison, Sheridan, Wyoming
    Representing the Harding and Bole: Laurence W. Stinson of Bormuth Freeman & Stinson, LC, Cody, Wyoming
    Representing Parker: R. Scott Kath of Copenhaver, Kath & Kitchen, LLC, Powell, Wyoming
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN & HILL, JJ.
   MACY, Justice.

Marlin Richardson and Lisa Richardson purchased a home from Lynn Hardin and Charolette Hardin in 1998. Robert Bole, who was employed by Stanley Parker as the sole proprietor for Cowboy Realty, was the real estate agent who listed the Harding home for sale. On June 20, 1996, the Rich-ardsons filed suit, alleging that the foundation walls of the basement were defective and structurally unsound and that such condition was known and concealed by the defendants. Parker was dismissed from the lawsuit on an affidavit of noninvolvement. The remaining defendants-the Hardins and Bole-denied the allegations, and the Hardins counterclaimed for attorney's fees. The defendants subsequently moved for a summary judgment, and the Harding also requested attorney's fees. The district court granted the defendants' motion for a summary judgment but denied the Hardins' request for attorney's fees. The Richardsons appeal from the orders which dismissed Parker on an affidavit of noninvolvement and granted a summary judgment in favor of the defendants. The Hardins appeal from that portion of the summary judgment which denied their request for attorney's fees.

We affirm.

ISSUES

The Richardsons present two issues for our consideration:

A. The Court erred in dismissal of Defendant Stanley B. Parker on an affidavit of noninvolvement.
B. The Court erred in granting summary judgment to Defendants Hardin and Bole.

The Harding request our review of the following issues:

A. Whether Plaintiffs breached a contract for real estate by refusing to accept the property "as is, where is" and by relying on Defendants' representations, all in contravention to the terms of the contract.
B. Whether a suit for fraud relative to a contract to buy real estate revives the entire document or only those provisions alleged to be fraudulent.
C. Whether the attorney's-fees clause contained within a buy/sell contract, which clause provides recovery of attorney's fees to the prevailing party, survives delivery of the deed and is not subject to the doctrine of merger.
D. Whether the lower court erred in declining to award attorney's fees to Defendants Lynn and Charolette Hardin, when Plaintiffs' case was lost on summary judgment.

FACTS

The Hardins bought their home from Builder Dave Showell in 1981. In 1992, when employment opportunities required them to relocate, they listed their home for sale with Bole. Bole was the Harding' neighbor and was also an associate broker and realtor for Cowboy Realty.

The basement walls of the home were built with unfinished cinder block, and, as the Hardins were moving into the home, they noticed that the southwest wall had buckled at chest height. The Hardins had Showell fix it, and they did not experience any more problems with the wall after the repair. Although the Hardins originally planned to paint the basement walls and caulked some hairline cracks in preparation to do so, they ended up paneling the basement with tongue- and-groove rustic wood instead. The paneling was affixed to a wooden 2" x 4" frame placed against the cinder, block walls. Because the top of the cinder block wall slightly tilted inward, the frame was not plumb against the wall, and the bottom of the 2" x 4" wall was approximately two or two and one-half inches from the cinder block wall. When Mr. Hardin asked Showell about this condition, Showell explained that this was the way it was built and that it was not indicative of movement. Onee the paneling project was complete in approximately 1984, the paneling remained in place until the Richardsons removed it approximately ten years later.

Although Bole was the Hardins' neighbor and considered the Hardins to be friends, he had never been in the basement of their home. He was, however, aware that, more than ten years earlier, the Hardins had experienced a settling problem. When he inquired about whether the Hardins had experienced any more problems with the basement after the repair of the wall, they responded that they had not. In preparing to list the house, Bole conducted a walk-through to measure its square footage and to get an idea about the features of the home. He also gave the Hardins a property condition statement to complete.

In the meantime, the Richardsons were planning a move from Jackson to Cody and were looking for a home large enough to accommodate their family. They also hoped to find a home located where they could keep horses. Mrs. Richardson viewed the Har-dins' home on two occasions. Mrs. Hardin was home on both occasions. At neither time did Mrs. Hardin make any statements which influenced Mrs. Richardson's decision to purchase the home.

Homes were in short supply, and Mrs. Richardson offered to purchase the home for the asking price of $107,000 on May 26, 1993, before her husband had the opportunity to see the home. The Hardins accepted the offer on May 27, 1998, creating an Offer, Acceptance and Receipt Specific Performance Contract (buy/sell contract). The Hardins signed and returned the Richard-sons' offer along with the property condition statement which had not been seen by the Richardsons before this time.

The buy/sell contract is a form which contains language advising buyers that they are accepting the house "as is, where is" without any reliance upon any representations of the sellers. -It further informs the buyers that it is a legally binding document and that the buyers might, therefore, want to consult with legal counsel before signing. Mrs. Richardson testified that she read and understood the contract before she signed it. The Rich-ardsons were also aware that they had a right to inspect the property prior to closing and that the right of inspection also allowed them to void the sale if the inspection netted unsatisfactory results.

After moving into the home, the Richard-sons discovered foundation defects. They hired a civil engineer to inspect the house and report on his findings. The engineer reported that the foundation had failed and the failure would continue to degrade, ultimately to the point of collapse. The engineer attributed the problem to the presence of expansive clays around the exterior of the basement foundation. He also noted that the basement floor was severely buckled, indicating the presence of expansive clays under the floor as well. He reported that he did not see any possibility of being able to repair the foundation and believed the only option was to remove the home from the foundation, reconstruct a completely new foundation designed for the soil conditions, and reset the home. He was concerned that the problems were known to the previous home owners because he had found some caulking in the cracks behind the paneling.

The Richardsons assert that they did not have the property inspected because, after the buy/sell contract was formed, Mrs. Richardson asked Mrs. Hardin about whether she had ever had any problems with the home. The Richardsons claim that Mrs. Hardin answered that she had never had any problems with the home and that she was sad to leave it. The Richardsons insist that they were defrauded by this statement because the Hardins had settling problems in 1981 which Mrs. Hardin failed to mention. The Richard-sons also claim that the property condition statement misrepresented the condition of the home when the answer "no" was checked in response to the inquiry about whether concealed cracks existed in the foundation walls or floors.

The Hardins contend that, at the time the floor was carpeted and the paneling was installed, the only cracks present were normal hairline cracks expected in normal settling and that they caulked the walls because they originally intended to paint the basement. They also assert that, as required by the Property Condition Statement, they provided the present description and condition of the property as they knew it to be.

The Richardsons filed suit, alleging fraudulent misrepresentation. Parker responded by filing an affidavit of noninvolvement and was subsequently dismissed from the suit. The remaining defendants filed a motion for a summary judgment. The district court granted the defendants' motion, finding that the Richardsons "failed to meet their burden of clear, unequivocal, and convincing evidence on summary judgment." The district court also found that the Richardsons "failed to prove any reliance upon a representation in purchasing the home and further failed to prove that any misrepresentation, if any existed, was intentional." Although the district court granted the defendants' motion for a summary judgment, it denied the Hardins' request for attorney's fees, reasoning that the attorney's fees provision in the contract was "no longer valid upon delivery of the Warranty [Dleed by Hardins to Plaintiffs because such language merged into the Warranty Deed." The parties appeal to this Court.

DISCUSSION

A. Summary Judgment

The Richardsons claim that the district court erred by granting a summary judgment in favor of the defendants, asserting that the Hardins knew about the condition of the basement walls and actively concealed it. They further contend that, because Bole was the Harding' neighbor and had experienced settling problems in his house, he also knew or should have known about the problems with the Har-dins' house. The defendants counter that none of them made any representations to the Richardsons prior to their offer to purchase the house and that any representations which were made after the buy/sell contract was entered into were made on the basis of the Hardins' knowledge of the current condition of the home. They assert that, after they had the wall repaired, they were aware of only hairline cracks which occur in normal settling.

In cases alleging fraud, this Court has previously held the following regarding the burden required to defend against a motion for a summary judgment:

[Fraud is to be established by clear, unequivocal, and convincing evidence, and it will never be presumed. These same concepts have been applied in addressing motions for summary judgment in the context of claims of fraud. Assuming the pleadings allege fraud with sufficient particularity, and the parties accused of fraud, in support of a motion for summary judgment, have presented facts that refute those allegations of fraud, the party relying upon the fraud claim then must demonstrate the existence of genuine issues of material fact by clear, unequivocal, and convincing evidence presented in opposition to the motion for summary judgment.

McKenney v. Pacific First Federal Savings Bank of Tacoma, Washington, 887 P.2d 927, 929 (Wyo.1994) (citations omitted).

To succeed on a claim of fraudulent misrepresentation, three elements must be established: First, the buyer must prove by clear and convincing evidence that the seller misrepresented a material fact; second, the buyer must establish that he relied upon the misrepresentations in entering into the contract and that such reliance was reasonable; and third, the buyer must demonstrate that he suffered injury as a result of his reliance upon the misrepresentation. Schepps v. Howe, 665 P.2d 504, 508 (Wyo.1983). With regard to the reasonable reliance element, this Court has recognized that the false representation must occur prior to the execution of the contract which is sought to be avoided or under which damages are sought to be recovered. Id.

Our review of the record discloses that the representations at issue occurred after the contract had been formed. It is undisputed that the defendants did not make any representations to the Richardsons until after May 27, 1993-the date the parties executed the buy/sell contract.

We addressed a similar situation in Schepps, where we held that any misrepresentations made after the buy/sell contract was executed could not be the basis of actionable fraud:

The documentation before the district court might well create a triable issue as to whether the misrepresentations which are complained of actually occurred, but this issue of fact cannot interfere with our affir-mance of the district court's grant of the summary judgment. Even if such misrepresentations of fact did occur, they were made after the contract had been executed. As a matter of law such misrepresentations cannot form the basis of actionable fraud because they could not serve as an inducement to the buyers in entering into the contract. As this court said in Schaffer v. Standard Timber Company, 79 Wyo. 137, 331 P.2d 611, 615 (1958):
"A party preparing to consummate a contract cannot be heard to complain if he fails to make reasonably diligent inquiry regarding the facts."
Any issue with respect to the misrepresentations is not material to the disposition of this case. Since the only misrepresentations that are relied upon were made subsequent to the time of the contract, any issue with respect to whether such representations were made would not be an issue of a material fact. As to this aspect of the summary judgment the district court must be affirmed.

665 P.2d at 509.

We agree with the district court that the Richardsons have failed to meet their burden of establishing by clear, unequivocal, and convincing evidence that they relied upon false representations in entering into the buy/sell contract. In this case, as was the situation in Schepps, the only representations at issue were made after the formation of the contract. They, therefore, could not have served as inducement, and the issue of whether they misrepresented a material fact is of no significance.

The Richardsons argue that, because the contract gave them until June 25, 1998, to inspect the property and void the contract if the inspection revealed any defects in the property, a binding contract did not exist until that date. They did not raise this argument during the summary judgment proceeding. Instead, it was made for the first time on appeal.

When we review a grant of summary judgment, we examine the case in the same manner as the trial court did, and we treat the motion as if it were originally before us, using the identical materials and information that were presented to the trial court. Pekas v. Thompson, 903 P.2d 532, 535 (Wyo.1995). The rule is that a party on appeal "'may only refer to the record as it existed at the time the trial court ruled, outline the arguments made at that time, and explain why the trial court erred in granting summary judgment"" Id. (quoting Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co., 226 Ill.App.3d 507, 168 Ill.Dec. 634, 589 N.E.2d 1034, 1036 (1992)). We, therefore, decline to consider this argument.

B. Dismissal Due to Noninvolvement

Parker filed an affidavit of nonin-volvement pursuant to Wyo. Stat. Ann. § 1-1-117(a) (LEXIS 1999) in response to the Richardsons' claims against him. The Rich-ardsons moved the district court to deny Parker's request for dismissal. A hearing was held, and the district court granted Parker's request for dismissal. The Richardsons argue on appeal that Parker should not have been dismissed because a broker has a duty to supervise his associate brokers and that Parker's liability stems from his supervision of Bole, who allegedly knew or should have known about the condition of the walls in the basement. Our decision affirming the summary judgment in favor of Bole is dispositive of this issue, and we, therefore, will not address it.

C. Attorney's Fees

The Hardins raise various issues regarding their perceived right to recover attorney's fees. They essentially claim that they are entitled to attorney's fees under the buy/sell contract. The Hardins and the Richardsons' buy/sell contract contained the following provision:

B. In the event that any party shall become in default or breach of any of the terms of this Contract, such defaulting or breaching party shall pay all reasonable attorney's fees and other expenses which the nonbreaching or nondefaulting party may ineur in enforcing this Contract with or without suit. This provision shall not limit any other remedies to which the parties may otherwise be entitled.

This executory contract was in full foree and effect from May 27, 1998, until the parties closed on the property on July 26, 1998. The contract merged with the deed on July 26, 1993, and it no longer existed. In the absence of fraud, once the contract merges with the deed, the terms of the deed govern the rights and responsibilities of the parties. 40 North Corporation v. Morrell, 964 P.2d 423, 426 (Wyo.1998); Bakken v. Price, 613 P.2d 1222, 1227 (Wyo.1980). "Since a contract is no longer executory but is executed upon making and delivering the deed, it is the further appropriate rule of law that, thereafter, the provisions of the contract are merged into the deed and it is the deed that controls the rights and obligations of the parties." Bakken, 613 P.2d at 1227. Attorney's fees can be awarded only pursuant to a contract or statute permitting them. Del Rossi v. Doenz, 912 P.2d 1116, 1119 (Wyo.1996). Because the contract merged with the deed, there is not a contract under which attorney's fees can be awarded.

The Hardins argue that the following language found in previous Wyoming cases allows the recovery of attorney's fees in actions for fraud: " '[Thhe law is well settled that, in the absence of fraud, an executed sale of real estate will not be rescinded for that cause, but in such case the purchaser must look for protection to the covenants of the deed.'" Bakken, 613 P.2d at 1227 (quoting Fellows v. Evans, 33 Or. 30, 53 P. 491, 492 (1898)). This language excepts fraud and not merely actions for fraud. Because we have held that the evidence does not show by clear, unequivocal, and convincing evidence that fraud occurred, we disagree with the Hardins' assertion that the contract was revived.

The Hardins urge this Court to adopt the collateral obligations rule rather than to hold that all the obligations contained in the contract for the sale or purchase of land merge into delivery of the warranty deed. The collateral obligations rule states that, "[ilf the promise is 'collateral' to the transaction, then it survives closing; if it is not, then it merges in the deed." Lawrence Berger, Merger by Deed-What Provisions of a Contract for the Sale of Land Survive the Closing?, 21 Real Estate L.J. 22, 82 (Summer 1992). We cannot, for the reasons we cited earlier in this opinion, consider this argument as it was presented for the first time on appeal.

Affirmed.


author: HILL, Justice.

text:
    In the Matter of the Worker's Compensation Claim of: Tim IKENBERRY, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Objector-Defendant).
    No. 99-250.
    Supreme Court of Wyoming.
    May 3, 2000.

      Representing Appellant: William M. Mac-Pherson, MacPherson Law Offices, LLC, Rawlins, WY. Argument presented by Mr. MacPherson.
    Representing Appellee: Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General; and Elizabeth C. Teigen, Assistant Attorney General. Argument presented by Ms. Teigen.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   HILL, Justice.

Appellant, Tim Ikenberry, seeks review of an order of the Office of Administrative Hearings denying his claim for worker's compensation benefits. We determine that the order denying evidence is contrary to the great weight of the evidence and, hence, is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. We reverse with directions that Ikenberry's claim for benefits be granted.

ISSUES

Ikenberry advances these issues:

1. Was the Hearing Examiner's decision to deny benefits supported by substantial evidence?
A. Was the Hearing Examiner's finding that there were numerous inconsistencies in the evidence presented by the Employee supported by substantial evidence?
B. Did the Hearing Examiner improperly consider evidence unrelated to the Employee's injury?
2, If the Employee's injury arose out of and in the course of his employment, should benefits be denied because the Employee suffered from a preexisting condition?

The Appellee, Wyoming Workers' Safety and Compensation Division (Division), rephrases the issues thus:

The Hearing Examiner denied benefits as he found that Employee did not prove the causation element of his case. The Hearing Examiner found that Employee presented numerous inconsistencies. These inconsistencies caused the Hearing Examiner to find Employee's testimony 'questionable at best."
A. Does substantial evidence support the Hearing Examiner's findings?
B. Does substantial evidence support a denial of benefits because of the Employee's pre-existing condition or should the Court remand the case to the Hearing Examiner for findings on the issue?

FACTS

Ikenberry, who was thirty-eight years of age at the time of the injury in controversy, was living in Casper when this matter arose. Preliminary to qualifying for parole, he was residing at the Community Alternatives Center (CAC) in a work release program. Iken-berry claimed to have been injured on March 15, 1998, while working at the Flying J Restaurant in Casper, when he slipped and twisted his back while lifting heavy mats out of a dishwasher. He first submitted a "Wyoming Report of Occupational Injury or Disease" on March 16, 1998. Ikenberry testified that he related the result of his accident (that his back ached) to Flossie Reeb (Reeb), his supervisor, shortly after the accident occurred. The day following the injury, Ikenberry formally reported the accident to Reeb, and she transcribed his oral description of the accident thus: "Was doing dish[es] that night said he had a back ache at end of night-had also complained of back ache the night before." The report indicated that Ikenberry's normal work hours were from 2:00 p.m. to 10:80 pm. That report also answered the question, "Has employee been treated for this injury and/or condition before?" with a question mark (?) and noted, "When he went for drug test he was on Darvocet and muscle relaxers Norflex." In addition, there were no witnesses listed in the report. Ikenberry filed a second report on March 17, 1998, and he himself wrote the information on that report. That report indicated that his normal work hours were from 6:00 a.m. to 2:00 p.m.; made no mention of previous treatment for "this injury;" listed two witnesses to the accident, "Flossy" and "Kate," and described the accident thus: "Working in dish tank lifting heavy mats and lifting heavy tubs of dishes on slippery floor." In all other pertinent respects, the reports were about the same.

The day following the "accident," March 16, 1998, Ikenberry was in considerable pain and sought medical care. First, he went to a hospital emergency room, then to a chiropractor, and finally to Albert V. Metz, M.D. (Metz), a physician whose practice is limited to neurological surgery. On March 25, 1998, Metz performed surgery on Ikenberry to repair a large dise herniation which was of recent origin and which was the result of a material aggravation or an acute precipitation of the dise herniation at the time he lifted and twisted with the heavy mats. Ik-enberry's complaints and his medical condition which required surgery were consistent with Dr. Metz's examination, the tests performed (MRI, ete.), the report made by Iken-berry, and Ikenberry's posture (bent over and in pain). Dr. Metz did note some degenerative changes at other disc levels in Iken-berry's back, but these were not unusual for a person who has done fairly active work. Dr. Metz also stated that he believed Iken-berry's complaints because his complaints and reports were sensible and consistent with the information he provided to Dr. Metz.

Ikenberry's claim for worker's compensation benefits was investigated, and ultimately the claim was denied on April 21, 1998, for the following reasons:

Final Determination

The Workers' Compensation Division has reviewed your accident report and medical records on 4/21/98, and has determined that we cannot approve payment of benefits for the following reason(s):
1) Definition of injury does not include: Any injury or condition preexisting at the time of employment with the employer against whom a claim is made. (Wyoming Statute 27-14-102(a)(xi)(£));
2) The burden is on the claimant to prove each essential element of his or her claim by a preponderance of the evidence;
3) The incident, as reported to the Division, does not meet the following definition: "Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement or 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. (Wyoming Statute 27-14-102(a)(xi));
4) Definition of injury does not include: Any injury resulting primarily from the natural aging process or from the normal activities of day-to-day living, as established by medical evidence supported by objective findings. (Wyoming Statute 27-14-102(3)(x}(G)). [Emphasis in original.]

The only conclusion that we can make from a reading of the letter denying benefits is that it was premised on a preexisting condition, the natural aging process, and normal activities of day-to-day living,. The problem with those conclusions is that there was no evidence of record developed in the Division's investigation of Ikenberry's injury to support those conclusions. It is correct that Ikenber-ry had a preexisting condition, but that condition was in his neck, and Dr. Metz positively eliminated that as being related to the injury he corrected with the surgery (" ... obvious that these are totally unrelated things."). Dr. Metz characterized Ikenber-ry's back as showing only normal degeneration based on his work history (no mention is made of "the natural aging process"), and there is no evidence that the injury resulted from the normal activities of day-to-day living. No mention is made in the above-quoted letter of the issues that were advanced at the hearing held on this matter (lying, deceit, artifice, etc.). Indeed, we feel compelled to note that the above-quoted letter appeared to have been composed based on speculation that was unsupported by the only medical evidence available to the Division.

On May 14, 1998, Ikenberry filed a request for a hearing on the denial of his claim stating: "We are objecting on the grounds that we are denying that this is a preexisting injury." Thereafter, the wheels of justice turned somewhat slowly because Ikenberry was returned to the Wyoming State Penitentiary from CAC, and assigning the case from Natrona County to Carbon County took some time. Suffice it to say for purposes of this appeal, his hearing before the Office of Administrative Hearings did not take place until March 30, 1999, and the Hearing Examiner's order is dated April 29, 1999. On May 18, 1999, Ikenberry filed his petition for review in the district court, and the district court certified the matter to this Court pursuant to W.RAP 12 on August 28, 1999.

STANDARD OF REVIEW

Our standard of review in a case such as this is well-established:

A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. Martinez v. State ex rel. Wyoming Workers' Compensation Div., 917 P.2d 619, 621 (Wyo.1996). When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the "[airbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" language of Wyo. Stat. § 16-3-114(c)(ii) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant, Pederson in this instance, has the burden of proving arbitrary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 432, 439 (Wyo.1974); Marathon Oil Co. v. Welch, 379 P.2d 832, 836 (Wyo.1968); Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the eredibility of witnesses. Utech, 895 P.2d at 451, and cases there cited. The deference nor mally accorded to the findings of fact by a trial court is extended to the administrative agency, and the agency's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 873, 875 (Wyo.1994). Demonstrating evidentiary contradictions in the record does not establish the irrationality of the ruling, but we do examine conflicting evidence to determine if the agency reasonably could have made its finding and order based upon all of the evidence before it. Matter of Corman, 909 P.2d 966, 971 (Wyo.1996); Knight, 805 P.2d at 274; Ward v. Board of Trustees of Goshen County School Dist. No. 1, 865 P.2d 618, 623 (Wyo.1993); State ex rel. Wyoming Workers' Compensation Div. v. Ramsey, 839 P.2d 936, 941 (Wyo.1992).

Claim of Pederson, 939 P.2d 740, 742 (Wyo.1997).

DISCUSSION

In applying the standards set out above, we search the findings and conclusions of the Hearing Examiner, as well as the record, to determine whether the agency's decision is based upon a consideration of relevant factors and is rational. Mortgage Guaranty Insurance Corporation v. Langdon, 634 P.2d 509, 520 (Wyo.1981); Burns v. State ex rel. Workers' Compensation Division, 4 P.3d 924, 926 (Wyo.2000).

We also need to premise our discussion with an acknowledgment that all of the witnesses who testified, and all other evidence introduced at the hearing, clearly established that there were no "eye-witnesses" to Ikenberry's accident. At no time in his reports of the accident, in his narration of the accident to his treating physician, nor in his own live testimony at the hearing, did he make a claim that anyone saw the accident occur. The testimony of an injured worker alone is sufficient to prove an accident if there is nothing to impeach or discredit the worker's testimony and the worker's statements are corroborated by surrounding cireumstances. Duncan v. Hardware Mutual Casualty Company, 275 So.2d 462, 463 (La.App.1973). Moreover, the occurrence of injuries resulting from accidents to which there are no eyewitnesses does not prevent fair inferences from being drawn and findings of facts from being made. Bohan v. Lord & Keenan, Inc., 98 N.H. 144, 95 A.2d 786, 788 (1953).

We have set out below the contents of the Hearing Examiner's decision and will interli-neate our comments on the findings and conclusions of the Hearing Examiner, as necessary. Before we set out on that task, we must delineate three additional components of the reasoning process we must employ in reaching a resolution of this case. First, if the evidence admitted into the record at the hearing is deemed to be credible, then Iken-berry is entitled to benefits. If the evidence is credible, then he has met his burden of proof by a preponderance of the evidence, and there is no meaningful evidence in conflict with it. See In the Matter of Pino, 996 P.2d 679, 685 (Wyo.2000); Matter of Thompson, 966 P.2d 977, 980-81 (Wyo.1998); and Forni v. Pathfinder Mines, 834 P.2d 688, 693 (Wyo.1992). Second, the Hearing Examiner premised his Order Denying Benefits on "inconsistencies" in Ikenberry's reports and testimony. The word "inconsistency" applies to propositions that cannot both be true, and that term is inappropriate to characterize propositions of differing degrees of completeness. State v. Jackson, 162 Conn. 440, 294 A.2d 517, 524 (1972). This is especially true under these cireumstances where over a year had passed since the accident occurred (and memories had faded) and, for example, times given were estimates. Third, we must be attentive to the concept of corroboration. "The theory of corroboration is that a statement which has been shown to be true in some respects is reasonably likely to be true in the remaining respects." Jackson, 294 A.2d at 522.

ORDER DENYING BENEFITS
THIS MATTER came before the Office of Administrative Hearings (Office) on March 30, 1999, for evidentiary hearing. The Claimant (Ikenberry) appeared in person and by and through counsel, William M. MacPherson. The Employer, Flying J, did not participate. The Division appeared by and through counsel, David E. Erickson. Ikenberry's Exhibits A through J and the Division's Exhibits S-1 through S-3 were received into evidence at the hearing. The Office has considered the evidence and argument of the parties, and makes the following:
FINDINGS OF FACT
1. The issue before this Office is whether Ikenberry suffered an injury to his back while employed at Flying J. Iken-berry argued he was pulling mats out of the dishwasher when he twisted his body, slipped on the wet floor, fell and caught himself on a cart. This either resulted in an acute injury or resulted in a material aggravation of a pre-existing degenerative condition. The Division argued Ikenber-ry's herniated dise was not the result of his work effort at Flying J. Based upon the findings herein, this Office denies benefits.

This finding strongly suggests that the Division's only theory of this case was that Ikenberry did suffer an injury which would have been compensable, but for the fact that inconsistencies made Ikenberry's testimony and that of his physician insufficiently eredi-ble to sustain the burden of proof Ikenberry was required to meet.

2. Ikenberry is an inmate at the Wyoming State Penitentiary. He is currently serving time on a felony conviction for escape and has at least two prior felony convictions, one for escape and one for burglary. In early 1998, Ikenberry was on work release at Community Alternatives of Casper (CAC). Ikenberry testified he had been working on a drilling rig but quit because of 12 hour work days with three hours travel time each way.

Although this finding explains why Ikenberry began working at Flying J, it serves no apparent purpose with respect to his burden of proof in this case nor to his credibility as a witness. See Wyo. Stat. Ann. § 27-14-404(M)(LEXIS 1999). To the extent the Hearing Examiner may have relied on these facts in reaching his decision, we view that to be a consideration of an irrelevant factor and not rational in view of the issues to be decided, as set out in the opening paragraph of the Hearing Examiner's order.

3. Ikenberry applied for and was hired as a dishwasher at Flying J. He was required to take a pre-employment drug test. The test was positive for Darvocet and Norflex. Exhibit E. According to Ikenberry, he was taking these pain medications for a neck problem. He had two cervical spine surgeries in 1998 and 1994 and continues to have neck problems.

This finding of fact is also accurate, but onee again serves no apparent purpose with respect to Ikenberry's burden of proof in this case nor to his credibility as a witness, particularly in light of the Hearing Examiner's ultimate conclusions. Ikenberry's physician testified that there was no relationship between the herniated dise at issue here and the problems associated with Ikenberry's neck, and there is no evidence to contradict that. These facts do not serve as evidence proving a relevant preexisting condition. The references to Ikenberry's use of Darvo-cet and Norflex may have been intended to suggest an "intoxication" defense for the Division (the record bears out that the Division's investigator sought to elicit testimony that Ikenberry may have been intoxicated, though there was no evidence to suggest that was the case).

4. Shortly after going to work, Ikenberry purchased a pair of non-skid shoes to wear at work because of the slippery floors. Ikenberry testified he had worked at Flying J a week or week and one-half prior to March 15, 1998. He was sure of this because he recalled getting one paycheck prior to the March 15, 1998 incident. However, the records indicate that Iken-berry was hired and went to work at Flying J on March 18, 1998.

This finding is essentially accurate, at least to the extent that Ikenberry's testimony was that he was unsure exactly when he started working at Flying J. Both of the accident reports made by Ikenberry listed his date of hire as March 13, 1998. The main thrust of this "inconsistency" was caused by a question asked by his attorney ("I represent to you that your injury [date of hire] was a week, two weeks before the injury."). That miscalculation was likely based upon the accident report forms because at first glance it is easy to misconstrue the date of hire to be 3/8/98, not 3/13/98. In any event, the inconsistency, if any, was neither relevant nor material to the fact that Ikenberry was employed at Flying J on March 15, 1998, the date he claimed to have suffered his injury. Likewise, it is not rational to find an "inconsistency" from this recitation of facts-though we agree there is a "difference."

5. Ikenberry testified he had been working the 2:00 pm. to 10:00 p.m. shift on March 15, 1998, and had been lifting and washing tubs of dishes. One of the requirements of his job was to wash the rubber floor mats near the end of his work shift. Ikenberry had taken up the five mats and was running them through the dishwasher. While pulling one of the mats from the dishwasher, he twisted his body, slipped on the wet floor, and caught himself on a ceart. According to Ikenberry, sometime near the end of his shift his back began to hurt.
6. Ikenberry testified that at the end of his shift he told Flossie Reeb (Reeb), the manager on duty, that he had hurt his back. According to Ikenberry he also told Kate Roberts (Roberts), a food server who was also staying at CAC, another waitress and Dave, the cook, that he had hurt his back. None of these people observed the incident because of the location of the dishwasher.
7. According to Ikenberry, Roberts gave him a ride back to CAC because he had missed the van. The next morning he had problems getting out of bed because of severe back pain. Once he was able to get up, he went to get a cup of coffee. At least two of the residents at CAC asked him what was wrong because he was walking hunched over and had problems standing up straight.
8. Roberts worked as a food server at Flying J and normally worked the 10:00 pm. to 6:00 a.m. shift. Exhibit B, p. 2. Roberts was working on March 15, 1998 and is not sure if she drove Ikenberry home that night. She did not see him get hurt at work, but did see him the next morning all bent out of shape like a pretzel. Roberts asked Ikenberry what happened and he said he fell at work and hurt his back. Exhibit B, p. 5. Roberts recalled working one 2:00 p.m. to 10:00 p.m. shift in March but does not recall the day. Exhibit B, p. 7. She also recalls giving Ikenberry a ride home one night but thinks she was just having dinner that night. Exhibit B, p. 20.

The testimony of Roberts is important in many respects. She only worked one or two shifts at the Flying J with Ikenberry, although she too was a resident at CAC and knew him longer from that association. Her testimony was that she had known Ikenberry for about 45 days and that he had seemed fine (with respect to his back) before March 16, 1998. Another witness, Flossie Reeb, whose testimony we will address later, testified vehemently that the dishwashing area was not slippery (though that was premised on the mats being on the floor which, of course, they were not because Ikenberry had removed them from the floor to wash them). In contrast, Roberts stated that the area was very slippery. Indeed she went into that subject in great detail, while expressing concern that her truthfulness might jeopardize her job at Flying J. The evidence was uncon-troverted that employees were required to wear non-skid shoes because the area was slippery. Roberts did relate that very shortly after the accident, Ikenberry told her he fell at work and hurt his back, and in that sense she could be a "witness" to Ikenberry's injury. See W.RE. 808(1) and (8). Of course, her knowledge of the condition of the floors also qualified her as a witness. In both instances, we recognize that she was not an "eye-witness." Since Ikenberry's eredibility is so central an issue in this case, we also note that Roberts spent several pages of her testimony attesting to Ikenberry's reputation for truthfulness, honesty, and being a "straight up kind of guy." In any event, Roberts's testimony corroborated Ikenber-ry's story in all respects. Again, there may be some minor "differences," but there are no inconsistencies.

9. Ikenberry went to the emergency room on March 16, 1998, and received treatment and pain medication for his back pain. He then went to Flying J and told them he would not be able to work because he had hurt his back at work the night before. On March 16, 1998, Ikenberry signed the first of two injury reports. Exhibit S-2. He filled out and signed the second report on March 17, 1998. Exhibit S-8. According to Ikenberry, the people at the Division told him to do two reports.

A brief comment on the final sentence demonstrates that the findings were not written with close attention to what is actually in the record. First, this finding suggests that Ikenberry's assertion that the Division told him to do two reports is unbelievable. However, Wyo. Stat. Ann. § 27-14-502(a) (LEXIS 1999) specifically calls for two reports to be made, one within 72 hours and the second within 10 days. Moreover, Ikenberry did not testify that "the people at the Division told him to do two reports." He did testify that he went back to do a second report because he was warned by the Division that it was very important to get the report right. Moreover, Ikenberry's insistence on filing the correct reports within the time periods allowed is, indeed, a very important thing for an injured worker. Failure to report an injury in accordance with § 27-14-502(a) results in a presumption that the claim shall be denied. Wyo. Stat. Ann. § 27-14-502(c) (LEXIS 1999).

10. The report of injury signed on March 16, 1998, indicates that Ikenberry was hired on March 13, 1998, and injured his back at 9:00 p.m. on March 15, 1998 while working the 2:00 p.m. to 10:00 p.m. shift. It also indicates the injury was reported to Terry Dreher at 2:00 pm. on March 16, 1998. This report does not have any witnesses listed. In the area requesting a description of the accident, the report states "Was doing dish that night said he had a back ache at end of night had also complained of back ache the night before." This report is signed by Reeb, the associate manager. Exhibit 8-2. Ikenberry first testified that Reeb filled out the report and he signed it. Ikenberry later testified that Reeb had not filled it out but Terry Dre-her had.

This is another finding that depends for its conclusions on an incomplete reading of the transeript, as well as ignoring the reports themselves. As we noted earlier, Ikenberry did initially express some difficulty in recalling who filled out the two reports. Finally, however, he did testify that it was not his handwriting on the first report, and that he recalled that Reeb had filled out that report. On its face, the report indicates that Reeb filled it out, and the handwriting, as well as the use of language, indicates that Reeb was answering the questions (instead of saying, " I was doing . ," it says, "He was doing ..."). Ikenberry testified that he filled in the second report after being warned he needed to make sure it was an accurate report. Under these very clear circumstances it is difficult to conclude that Iken-berry was being "inconsistent." The more believable conclusion is that, after consulting with the Division about his claim, Ikenberry concluded that he needed to be more thorough.

11. The second report of injury was completed by Ikenberry on March 17, 1998. This report indicates he was hired on March 13, 1998, and injured his back at 8:00 p.m. on March 15, 1998 while working the 6:00 am. to 2:00 pro. shift, It indicates the injury was reported to "Flossy (manager)" at 9:00 p.m. on March 15, 1998. This report lists Reeb and Roberts as witnesses. In the area requesting a description of the accident it states "working in dishtank lifting heavy mats and lifting heavy tubs of dishes on slippery floor." Exhibit S-8.

Here again, the record does not support the findings. There is a minor difference in the time the injury occurred, but Ikenberry's reports and his testimony were always consistent that it occurred near the end of his shift (between 8:00 p.m. and 10:80 p.m.). Apparently, the Hearing Examiner found an inconsistency between Reeb's characterization of the place of the injury in the first report as "doing dish[es]" and Ikenberry's characterization of it as "working in dish-tank." It is also noted that the second report listed two witnesses. A likely explanation is that Reeb did not list any witnesses because Ikenberry admitted from the beginning that there were no "eye-witnesses," so Reeb did not list any in the report that she wrote. As noted above, it is certainly eredi-ble that persons to whom Ikenberry promptly reported the accident could be viewed as "witnesses," by lawyer or layman alike (indeed, the Division relied on both as witnesses and makes use of their testimony to attempt to support the "inconsistencies"). Ikenber-ry's testimony concerning the second report was that he was warned to be thorough and, thus, included in the report the names of two potential witnesses. Reeb conceded that Ik-enberry told her the night of the accident that his back hurt (here we encounter another "inconsistency" in the sense that Ikenber-ry claimed he told Reeb he hurt his back, while she said he reported that his "back ached," hardly the stuff of a rationale for inconsistency). Reeb did not consider that a report of an injury because Ikenberry complained "every night" about a back ache, although he only worked there three days, and she could not remember if she had worked all three with him. More importantly, Ikenberry's physician testified that the onset of the pain and disability which follows an injury, such as that Ikenberry sustained, may not show up for hours or even days. Reeb testified that it was not slippery in the dishwashing area because there were mats on the floor (this, despite the uncontradieted evidence that all employees were required to wear non-skid shoes). The testimony from Ikenberry and Roberts was that it was extremely slippery in that area and, moreover, at the time Ikenberry suffered his injuries, the mats were not on the floor but in the dishwasher. The credibility gap here goes to Reeb, not to Ikenberry.

12. Ikenberry was asked to explain the various discrepancies. He testified he was not sure of the time of the incident when he slipped, other than it was near the end of his shift. He said it might have been 8:00 p.m., 8:80 p.m. or sometime prior to 10:30 p.m. Ikenberry said he did report the injury to Reeb at the end of his shift on the 15th, but told her he was not sure how bad he was hurt. Ikenberry said he did report the injury to Terry Dreher on the l6th and it was about 2:00 p.m. when they filled out the report. Ikenberry also indicated he did put down the 6:00 a.m. to 2:00 pm. shift because that was his new work shift.

It is at most inconsequential that Ikenber-ry did not report the severity of his injury on the night of March 15, 1998, because the severity was unknown to him until the next day. Apparently, the Hearing Examiner faults Ikenberry for indicating that his "normal work hours" were from 6:00 am. until 2:00 p.m. when there is no question but that Ikenberry worked from 2:00 p.m. until 10:30 pm. on March 15, 1998. An employee's "normal work hours" may well be different from hours actually worked and, indeed, Ik-enberry's testimony that his hours were variable was not rebutted.

13. Reeb was interviewed and the transcript of that interview was admitted into evidence. Exhibit S-1. She stated that Ikenberry told her of a back problem prior to going to work for Flying J and that he complained of a backache every night after his work shift. Exhibit S-1, p. 5. Ikenber-ry's drug sereen indicated muscle relaxers and pain medications which he said were for his back pain. According to Reeb, Ikenberry never mentioned anything about a work injury and that if he had, she would have completed an incident report. Exhibit S-1, p. 9. Reeb thinks Ikenberry told her he had worked in the oilfield and had some kind of injury with that job. Exhibit §-1, p. 11. Ikenberry denied telling Reeb his back ached after each work shift.

Reliance on Reeb's testimony that Iken-berry complained of a back ache "every night she worked with him" seems almost ludicrous in light of the fact that she worked with him for at most three nights and maybe only two. Her description of a prior back problem is unsubstantiated by any medical evidence. Indeed, the medical evidence contradicted it. Dr. Metz testified that Ikenberry's previous problems were with his neck and had absolutely nothing to do with the back injury which was corrected with surgery.

14. Ikenberry received treatment for his back condition and was seen by a chiropractor several times. The chiropractor decided there was something wrong, ordered an MRI and sent Ikenberry to Dr. Albert V. Metz, Jr.
15. The MRI of March 20, 1998 revealed degenerative dise disease and bulging or herniated discs. Disc dehydration and a broad based central herniation were found at L3-4. Disc dehydration and a focal central herniation were found at L4-5. Disc dehydration and a small central herniation were found at L6-Sl. Exhibit D.
16. Ikenberry first saw Dr. Metz, a neurological surgeon, on March 24, 1998. At that time, Ikenberry was standing with his hips and knees flexed and was leaning forward. He could not straighten up without pain and could bend forward about 45 degrees. The leg lift indicated a nerve in the low back was possibly trapped. Eixhib-it A, p. 7. Ikenberry gave a history of lifting 80 pound floor mats, washing them, and while lifting and twisting, his feet slipped a couple of times. Ikenberry developed pain a couple hours later. Exhibit A, p. 9. According to Dr. Metz, it is common to experience pain hours or days after an injury. Exhibit A, p. 10.
17. Based upon the history, the examination, and the MRI, Dr. Metz ordered surgery which was performed on March 25, 1998. Exhibits F and G. Dr. Metz stated he was unable to provide a date for the injury which caused the herniated disc. Exhibit A, p. 15. However, he did state that his observations of the tissue during the surgery provided some evidence of a fairly recent phenomenon. Exhibit A, p. 16.
18. -It is Dr. Metz' opinion that the herniated dise at L4-5 was consistent with the mechanism of injury reported by Ikenber-ry and that lifting heavy objects and turning is a common mechanism for an acute ruptured dise. Dr. Metz also indicated that Ikenberry had degenerative changes at other dise levels and that was not unusual for a person like Ikenberry who has done fairly heavy work. Exhibit A, p. 18. Dr. Metz also stated "I think there was either a material aggravation or an acute precipitation of the disk herniation in his back at the time that he lifted and twisted with those heavy mats." Exhibit A, p. 19.
19. Dr. Metz has treated several thousand herniated discs in his practice. He stated that he is unable to tell how recent a herniation has occurred and that he relied on the patient history in forming an opinion. Exhibit A, p. 22. According to Dr. Metz all his opinions are based upon the history provided by Ikenberry and that he did not go into Ikenberry's past history of back pain as much as he should have. Exhibit A, p. 23 and 24.
20. The medical evidence is clear that Ikenberry had a herniated dise and that it has been surgically repaired. However, how the dise was herniated and when the dise was herniated is not clearly established by the evidence. While Ikenberry has given a history of a lifting and twisting incident at work, there were no witnesses to the incident. Additionally, there are numerous inconsistencies in the evidence presented by Ikenberry including how long he worked before the injury, when he reported the injury, his work shift, the time of the injury, who he reported the injury to, and listing witnesses when there were none. The numerous inconsistencies lead this Office to find that Ikenberry's testimony is questionable at best. Since his testimony is questionable, the opinion of Dr. Metz as to the work-relatedness of the injury is not given much weight. The Office concludes that benefits should be denied.

As is set out more completely in our statement of the facts and the interlineations within the findings made by the Hearing Examiner, this conclusion simply cannot be sustained by the record presented to this Court for review. Based on these faulty findings, the Hearing Examiner reached the following conclusions.

CONCLUSIONS OF LAW
1. A claimant in a workers' compensation case has the burden of proving all the statutory elements which comprise a "com-pensable injury." Matter of Worker's Compensation Claim of Thornberg, 913 P.2d 863 (Wyo.1996) and Workers' Compensation Claim of Jacobs, 924 P.2d 982 (Wyo.1996). This burden includes establishing the cause of the condition for which compensation is claimed and that the injury arose out of and in the course of the employment. See Wyo. Stat. Ann. § 27-14-102(a)(xi) (Michie 1997) State ex rel. Workers' Compensation v. Espinoza, 924 P.2d 979, 981 (Wyo.1996) citing Baker v. Wendy's of Montana, Inc., 687 P.2d 885, 892 (Wyo.1984). In this case, Ikenberry must establish that his work effort at Flying J resulted in the herniated dise or materially aggravated a pre-existing degenerative condition.
2. A claimant has the burden of establishing each and every statutory element by a preponderance of the evidence. Thornberg, 913 P.2d at 866 and Jacobs, 924 P.2d at 984.
A "preponderance of the evidence," is defined as "proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence." Scherling v. Kilgore, 599 P.2d 1352, 1359 (Wyo.1979).
Thornberg, 913 P.2d at 866. The evidence presented is not to be liberally construed in a claimant's favor when determining if an injured worker has met that burden of proof. Matter of Fansler, 914 P.2d 156 (Wyo.1996).
3. Where the condition for which compensation is sought involves complex medical issues, the technical knowledge and testimony of medical experts may be both highly persuasive and relevant to the resolution of questions concerning causation. Black Watch Farms v. Baldwin, 474 P.2d 297, 300 (Wyo.1970), citing Bocek v. City of Sheridan, 432 P.2d 893, 894-895 (Wyo.1967). This is not to say though that medical testimony which amounts to speculation or which is based upon a questionable history necessarily carries such weight. Matter of Krause, 803 P.2d 81 (Wyo.1990).
4. Whether an employee's injury occurred in the course of his employment is a question of fact. Cabral v. Casper Building Systems, Inc., 920 P.2d 268 (Wyo.1996). Weighing the evidence and assessing the credibility of witnesses is the responsibility of the hearing examiner. Cabral, 920 P.2d at 271 and Fansler, 914 P.2d at 159.
5. In the case of Latimer v. Rissler & McMurry Co., 902 P.2d 706, 711 (Wyo.1995), the Wyoming Supreme Court stated:
, When the inconsistencies in the evidence and the claimant's testimony make it impossible for the hearing examiner to determine whether the accident arose out of in the course of his employment, the claimant has failed to sustain his burden. Farman v. State ex rel. Wyoming Workers' Compensation Division, 841 P.2d 99, 103 (Wyo.1992).
6. Ikenberry has failed to meet his burden. While there is no question that Ik-enberry had a herniated dise which was surgically repaired, the evidence does not establish his work at Flying J was the cause of the herniated dise. Ikenberry has degenerative dise disease which is a pre-existing condition and there are a number of ways an individual can herniate a disc. Simple tasks like bending over and coughing can cause a herniated disc. Ikenberry describes a lifting and twisting incident at work which was not observed by anyone and this could have caused the herniation. However, due to the numerous inconsistencies in Ikenberry's evidence, this Office has concluded that his testimony is questionable at best. Since Ikenberry's rendition of the event is questionable, any medical opinion based upon it is also questionable. Since the evidence is questionable, Ikemberry has failed to prove his herniated dise arose out of and in the course of his employment.

Based upon our recitation of the ree-ord as set out above, we hold that the Hearing Examiner's decision was not based on relevant factors and was not rational, For this reason, the decision to deny Ikenberry benefits is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.

On other occasions we have been called upon to evaluate determinations of a hearing examiner with respect to credibility of witnesses, especially in the context of inconsistencies or contradictions in testimony. A comparison of two of those cases with this case will make more evident the error we find in the instant case. In Morgan v. Olsten Temporary Services, 915 P2d 12, 15-16 (Wyo.1999), we affirmed a denial of worker's compensation benefits based on these facts: The worker's supervisor first learned of the slip and fall accident at the hearing; the evidence was to the effect that the worker did not engage in any heavy lifting or other tasks which might have caused an injury; the worker told his physician that there was no specific episode that caused the injury, whereas at the hearing, the worker testified that he slipped and fell while carrying boxes down a flight of stairs, and the worker also contradicted his earlier statements to his physician that the onset of pain was progressive over a period of time; whereas at the hearing, he testified that the onset of pain was immediate. In Latimer v. Rissler & McMurry Co., 902 P.2d 706, 709-11 (Wyo.1995), we based our affirmation of a denial of benefits on a litany of contradictions in the testimony of the injured worker as to the source and date of the injurious incident, as well as contradictions in the testimony of five treating physicians. Those cases present examples wherein the hearing examiner considered relevant factors, and the conclusions gleaned from those factors were rational.

The Division asks that, based on this record, we determine that Ikenberry failed to prove by a preponderance of the evidence that he suffered a material aggravation of a preexisting condition. In the alternative, the Division asks that we remand that same issue to the Hearing Examiner to make findings and conclusions.

What the Division requests is a new hearing at which it can have the opportunity to develop and present the case it did not present the first time around. We decline to grant such a remand. The evidence of record fully supports a conclusion that Ikenber-ry suffered an injury while employed at the Flying J Restaurant and is, therefore, entitled to benefits. Consequently, we reverse the Order Denying Benefits, and the case is remanded to the Office of Administrative Hearings for the sole purpose of determining the appropriate amount of worker's compensation benefits that should be awarded to Ikenberry.

Reversed and remanded to the Office of Administrative Hearings.