text:
    The PEOPLE of the State of Colorado, Complainant, v. Obert J. WEISBARD, Respondent.
    No. 01PDJ093.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Dec. 4, 2002.
    Opinion issued by a Hearing Board consisting of the Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board Members SISTO J. MAZZA, a member of the bar, and DEENA RAFFE, Ph.D, a representative of the public.
   REPORT, DECISION AND IMPOSITION OF SANCTIONS

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on October 1, 2002, before a Hearing Board consisting of the Presiding Disciplinary Judge, Roger L. Keithley ("PDJ"), Sisto J. Mazza, a member of the bar, and Deena Raffe, Ph.D., a representative of the public. James S. Sudler, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). Robert J. Weisbard did not appear either in person or by counsel.

The Complaint in this action was filed October 16, 2001. The Complaint and Citation were sent by certified mail to Weisbard's last known address on October 17, 2001. Proof of service was filed May 7, 2002. Service was therefore proper pursuant to C.R.C.P. 251.32(b). Weisbard did not file an Answer to the Complaint. On May 10, 2002, the People filed a Motion for Default. Weisbard did not respond. On July 2, 2002, the PDJ issued an Order granting default, stating that all factual allegations set forth in the Complaint were deemed admitted pursuant .to C.R.C.P. 251.15(b), and that all violations of the Rules of Professional Conduct ("Colo. RPC") alleged in the Complaint were deemed established.

The Hearing Board considered the People's argument, the People's exhibits 1 through 4 which were admitted into evidence, the facts established by the entry of default, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Weisbard has taken the oath of admission, was admitted to the bar of the Supreme Court on October 27, 1988 and is registered upon the official records of the Supreme Court, attorney registration number 18088. Weisbard is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the Complaint were deemed admitted by the entry of default, and are therefore established by clear and convincing evidence. See Complaint attached hereto as Exhibit "I." The order entering default also granted default as to all alleged violations of the Rules of Professional Conduct set forth therein.

II. CONCLUSIONS OF LAW

The Order entering default against Weisbard established that in the Child and Real matters, Weisbard violated Colo. RPC 8.A(c)(it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). In five matters (Child, Dilda, Real, Porter and Flynt), Weisbard neglected the clients' cases in violation of Colo. RPC 1.3 (an attorney shall not neglect a legal matter entrusted to that attorney). In three matters (Dilda, Real and Flynt) Weisbard failed to communicate with clients in violation of Colo. RPC 1.4(a)(an attorney shall keep a client reasonably informed about the status of a matter). In five matters (Dilda, Real, Porter, Flynt and Walling), Weisbard failed to provide an accounting when the clients requested he provide them with one in violation of Colo. RPC 1.15(b)(an attorney shall promptly deliver to the- client ... any funds or other property that the client ... is entitled to receive). .In four matters (Dilda, Real, Flynt, and Walling) Weisbard failed to return the clients' files upon request. In the Real case, Weisbard violated Colo. RPC 1.16(d)(surren-dering papers and property to which the client is entitled upon termination and refunding any advance payment of any fee not earned) by accepting fees in advance, failing to perform legal services sufficient to earn all of the fees advanced, and failing to return the unearned fees after termination by the client. In the Dilda, Flynt and Walling cases, Weisbard violated Colo. RPC 1.16(d) by failing to return the clients' files. More over, Weisbard did not respond to the requests for investigation forwarded to him by the Office of Attorney Regulation Counsel as required by C.R.C.P. 251.5.

A review of the individual matters reveals the extent of Weisbard's neglect. In the Child matter, Weisbard represented husband and wife who paid him a total of $700 to draft and file a petition for dissolution of marriage and a separation agreement. The clients had largely agreed upon the terms of the agreement. Weisbard initially drafted and filed the petition for dissolution but thereafter failed to communicate with the clients for a period of ten months despite their efforts to communicate with him. During this time frame he failed to draft the separation agreement. Eleven months following the initial meeting, the clients demanded the return of their file and $500 of the funds they had paid. Weisbard did not return the funds and did not render an accounting when requested. The clients were constrained to complete the dissolution of marriage without counsel. Weisbard collected $700 for specified services, failed to provide the services and failed to refund the unearned fees for a substantial period of time, constituting dishonesty.

In the Dilda matter, Weisbard represented a client in a personal injury matter. Weis-bard filed a complaint on behalf of the client but took no further action in the case. When the court ordered Weisbard to serve the defendants in the case and Weisbard failed to file returns of service with the court, the court dismissed the case for failure to prosecute. The client was only made aware that the case had been dismissed several months later. The client requested Weisbard return the file containing original documents and he failed to do so.

In the Real matter, Weisbard was paid $1,500 to represent a client in a child custody matter. The client requested that Weisbard draft a stipulation with regard to child visitation, which Weisbard failed to do. The client attempted to contact Weisbard over a four-month period, decided to hire replacement counsel, and demanded the return of the file. Weisbard failed to return the file. Weisbard collected an advance fee of $1,500 for specified services, failed to perform the specified services, and failed to return the unearned fees for a substantial period of time in violation of Colo. RPC 8.4(c).

In the Porter matter, a client hired Weis-bard concerning a child visitation issue and paid him $2,500. Prior to Weisbard's involvement in the case, the court ordered specific visitation rights for the father regarding the adolescent son. When the son refused to visit the father, the client advised Weisbard of her son's refusal, and asked Weisbard to inform the court that the client had done everything she could to comply with the court's order. He failed to do so. Weisbard also agreed to file a motion requesting review of the proposed findings submitted by opposing counsel. Thereafter, for four months, the client could not reach Weis-bard. The court ordered Weisbard's client to submit a transeript of the prior hearing by a date certain. Weisbard never filed the transcript with the court, which resulted in the court's determination that the motion for review was abandoned. Weisbard did not advise the client that the motion had been ruled upon. The client terminated Weis-bard's representation and demanded a refund and an accounting. Weisbard did not refund any portion of the advance fee and did not provide the client with an accounting.

In the Flynt matter, the client hired Weis-bard to represent her in a dissolution of marriage proceeding and paid him $1,500. Weisbard filed a petition for dissolution with the court and sent a copy of the petition to the opposing party. Thereafter, Weisbard did nothing in the case except respond to a settlement letter. He failed to set the matter for a temporary and/or permanent orders hearing. Eight months after commencing representation, the client attempted but did not succeed in contacting Weisbard. Replacement counsel attempted to contact Weisbard and was unable to do so. Later, Weisbard sent a statement to the client reflecting that she had a credit balance of $925.35. Weisbard did not provide a refund, an accounting, nor did he return the original documents to the client.

In the Walling matter, the client hired Weisbard to represent her in a dissolution of marriage action. Weisbard performed work on the case but at its conclusion, failed to return the file or render an accounting to the client as requested.

III. SANCTION/IMPOSITION OF DISCIPLINE

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) ("ABA Standards") is the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct. >

ABA Standards 44l(b) and (c) provides that disbarment is generally appropriate when: -

(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to the client. |

ABA Standard 4.42(a) and (b) provide that suspension is generally appropriate when:

(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

The presumptive sanctions recommended by ABA Standards 441 and 4.42 are distinguished by the degree of injury or potential injury to the client occasioned by the lawyer's misconduct. In the Child matter, the clients were constrained to complete the dissolution of marriage without representation of counsel. The Dilda matter was dismissed based on Weisbard's failure to prosecute and the client never regained possession of her original documents. In the Real matter, Weisbard failed to take action on behalf of the client over a four-month period, waiting until shortly before the deadline to set the matter for a hearing thus placing the client at the risk of dismissal of the case, and failed to refund unearned fees. In the Porter matter, Weisbard risked placing his client in contempt of court by failing to communicate critical information to the court on behalf of the client regarding compliance with. a court order, and failing to file a transeript when ordered to do so. Weisbard's inaction resulted in the client's motion for review of the magistrate's ruling being abandoned. The client never recovered the unearned fees paid to Weisbard. In the Flynt matter,; Weisbard failed to return unearned fees and original documents to the client.

In five of the six cases, Weisbard's actions resulted in serious harm to the ' clients. Weisbard either retained client funds or property to which he was not entitled or neglected his clients' cases to such a degree that the clients, unable to contact him, hired replacement counsel. In one instance, Weis-bard's conduct resulted in the dismissal of the case. In the Walling matter, Weisbard caused injury to his client, but on the facts presented, it cannot be concluded that the injury caused was serious.

In each of the five matters where Weis-bard caused serious harm, the facts established evidence that Weisbard was aware of the services requested by the clients and he knowingly failed to perform those services. Taken together, Weisbard's misconduct evidences a pattern of behavior resulting in serious neglect. Under the ABA Standards, supra, a sanction of suspension to disbarment is warranted." Colorado law is in accord with the ABA 'Standards' range of sanctions, including disbarment. See People v. - Murray, - 887 P.2d 1016, 1021 (Colo.1994)(awyer disbarred for knowingly failing to perform services for clients in ten separate matters constituting a pattern of neglect and causing potentially serious harm to clients); People v. Dulaney, 785 P.2d 1302, 1306 (Colo.1990)(lawyer disbarred for chronic neglect of client matters and use of deceit to cover the neglect); People v. Stewart, 752 P.2d 528, 530 (Colo.1987)(attorney disbarred for demonstrating a continuing pattern of neglect that caused serious injury to the two clients and risk of serious injury to two other clients considering the attorney's prior history of similar misconduct); People v. Milner, 35 P.3d 670, 687 (Colo.O.P.D.J.2001)(lawyer disbarred for, among other things, neglect of fourteen separate client matters).

Determination of the appropriate sanction requires consideration of aggravating and mitigating factors pursuant to ABA Standard 9.22 and 9.32 respectively. Weisbard did not participate in the disciplinary proceedings, accordingly no mitigating factors were established. The aggravating factors considered include Weisbard's engaging in a pattern of misconduct, see id. at 9.22(c), engaging in multiple offenses, see id, at 9.22(d), and failing to cooperate in the disciplinary proceeding, see id. at 9.22(e).

Additionally, a respondent attorney's prior misconduct may be considered as an aggravating factor pursuant to ABA Standard 9.22(a). An examination of Weisbard's disciplinary record reveals extensive and similar prior misconduct, predating the misconduct which is evident in this case. On May 29, 2001, the Supreme Court in the decision In re Weisbard, 25 P.3d 24 (Colo.2001) affirmed the Hearing Board's decision, People v. Weisbard, 35 P.3d 498 (Colo.O.P.D.J.2000), Case No. 99PDJ072, and suspended Weisbard from the practice of law for a period of eighteen months effective June 29, 2001. In that default proceeding, Weisbard's misconduct arose from a fee dispute with a former law partner. Weisbard changed the locks on the firm's offices and took control of the operating and trust accounts. As a result of Weisbard's actions, numerous clients were impacted. In four separate matters, Weis-bard violated Colo. RPC 1.15(b) by failing to promptly return the balance due on retainers owed to clients notwithstanding their request for the funds. In five separate matters, Weisbard violated Colo. RPC 1.15(b) by ignoring clients' requests for their files and failing to promptly assemble and transmit them, resulting in injury to at least three clients. In two separate matters, Weisbard failed to return clients' phone calls, in violation of Colo. RPC 1.4(a). In one matter, he failed to file a timely response to a petition to revise a separation agreement in violation of Colo. RPC 1.3. Additionally, Weisbard violated Colo. RPC 4.5(a) by threatening to advance criminal and/or disciplinary charges against his prior partner in the course of a civil proceeding. Weisbard violated Colo. RPC 1.15(a) by commingling personal funds with client funds; he violated Colo. RPC 8.4(c) by retaining funds belonging to a client and attempting to settle a suit brought against him by the client with the funds as consideration for a settlement.

In a subsequent matter, People v. Weisbard, No. 00PDJ069, 2001 WL 1161658, (Colo., PDJ June 13, 2001) 2001 Colo. Discipl. LEXIS 51, the PDJ accepted the parties Conditional Admission of Misconduct and suspended Weisbard from the practice of law for a period of eighteen months. Weisbard violated Colo. RPC 1.3 by failing to prepare a written stipulation and order after having been ordered to do so by the court, and by neglecting to take timely action on a motion to modify child support. Weisbard also violated Colo. RPC 3.4(c) and Colo. RPC 8.4(d) by repeatedly disobeying orders of the court. Weisbard violated Colo. RPC 1.16(a)(8) by failing to move to withdraw from representing his client after being requested to do so. He violated Colo. RPC 1.4(a) by failing to communicate with the client. In a separate matter, Weisbard violated Colo. RPC 1.3 by failing to prepare financial information disclosure documents and failing to timely prepare and follow through on a Qualified Domestic Relations Order, and violated Colo. RPC 1.4(a) by failing to inform his client of an order requiring exchange of financial information and not informing the client of his failure to prepare the required disclosure document.

The misconduct giving rise to the prior disciplinary actions evidences the same neglect of the clients' legal matters and complete disregard of the clients' interests upon termination. - Considering Weisbard's past disciplinary history demonstrating an extensive pattern of neglect, the fact that he did not participate in this proceeding, and the fact that the within proceeding evidences repeated instances of neglect causing serious injury, disbarment is the appropriate sance tion.

IV. ORDER

It is therefore ORDERED:

1. ROBERT J. WEISBARD, attorney registration number 18088 is DISBARRED from the practice of law effective thirty-one days from the date of this Order.
2. WEISBARD is Ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Weisbard shall have five (5) days thereafter to submit a response thereto.
WEISBARD is Ordered to make the following refunds, returns or account-ings within sixty-one (61) days of the date of this order:
A. - Refund $500 with statutory interest from the date of this Order to Christie Child;
Refund $1,500 with statutory interest from the date of this Order to Melody Real;
Refund $935.25 with statutory interest from the date of this Order to Heidi Flynt;
Provide Cyndi Porter with an accounting and refund all unearned fees to her with statutory interest from the date of this Order;
Provide Christine Walling with an accounting and return the client file; and
E. Return the client file to Meri Lyn Dilda.
4. WEISBARD is further ordered to file a certificate of compliance with this court within seventy-five (75) days of the date of this order showing that he has complied with all of the orders contained herein.

EXHIBIT 1

COMPLAINT

THIS COMPLAINT is filed pursuant to the authority of CRCP. 251.9 through 251.14, and it is alleged as follows:

JURISDICTION

1. The respondent has taken and subscribed the oath of admission, was admitted to the bar of this court on October 27, 1988 and is registered upon the official records of this court, registration number 18038. He is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 1150 West Littleton Boulevard, Suite 150, Little-ton, Colorado 80120.

CLAIM ONE-Child Matter

2, Ms. Child and her husband hired the respondent in November 1999 to prepare and file their divorcee for both of them.

3. The respondent agreed to represent both Mr. and Ms. Child.

4. The parties were in substantial agreement about the terms of their divorce.

5. Ms. Child paid the respondent $200.00 on November 3, 1999 for this initial meeting.

6. - The respondent drafted the dissolution petition and the parties gave him a document showing their agreement about terms.

7. They paid the respondent an additional $500.00 to prepare and file the separation agreement.

8. At the end of March 2000 Ms. Child called to the respondent's office to learn the status of her divorce. She thought that it had been filed and that the 90-day waiting period would be over.

9. The respondent did not return her calls. ‘

10. Ms. Child called the respondent's office numerous times until August 2000.

11. The respondent did not return these calls and did not communicate adequately with his client.

12. Ms. Child learned that the respondent . had filed only the petition but not the separation agreement.

13. In September 2000 Ms. Child went to the respondent's office in an attempt to get her file. She asked the respondent in person for her file and for her $500.00 back.

14. The respondent stated to Ms. Child that he had been working on her file. He did not give her her file or any money.

15. Furthermore, he never provided her with an accounting of what he did even though she requested an accounting.

16. Ms. Child and her husband are still in the process of finalizing their divorce by themselves.

17. The respondent did not prepare and file the separation agreement for which he had been paid $500.00.

18. The respondent did not return the $500.00 that he did not earn.

19. He has engaged in neglect in violation of Colo. RPC 1.3, and he has failed to return an unearned fee of $500.00 in violation of Colo. RPC 1.15(d). It is unknown what the respondent has done with the money. By failing to return the money for which he did no work the respondent has engaged in dishonesty in violation of Colo. RPC 8.4(c).

WHEREFORE, the complainant prays for relief at the conclusion hereof.

CLAIM TWO-Dilda Matter

20. Meri Lyn Dilda hired the respondent on or about March 15, 2000 to represent her and her children in a personal injury matter. They had been hurt in their apartment when a piece of wood attached to the premises fell and hit them.

21. The respondent had a contingent fee agreement with Ms. Dilda.

22. He filed a complaint with a jury demand in Adams County District Court on July 13, 2000. The date of the injury was July 14, 1998. On July 14, 2000, Ms. Dilda called the respondent and his assistant faxed her a copy of the complaint.

23. In August 2000, Ms. Dilda tried to learn from the respondent what was happen-' ing in her case and left numerous phone messages with the respondent's assistant, “Don »

24. On January 28, 2001, Ms. Dilda again called and this time spoke to Don. She asked him to send her a copy of the complaint and jury demand, Don faxed to her a copy of an order dismissing the case dated October 19, 2000.

25. Ms. Dilda had never heard of or seen this order or the previous order leading to it.

26. On September 6, 2000 the court had sent out an order to the respondent to serve the defendants with the complaint.

27. The respondent failed to comply with that order and Judge Bockman dismissed the case without prejudice for failure to prosecute on October 19, 2000,

28. Ms. Dilda has tried on numerous occasions to get her file from the respondent by calling and writing him. He has never returned the file.

29. - On April 27, 2001 the Office of Attorney Regulation Counsel sent a letter to the respondent telling him to return Ms. Dilda's file to her.

30. He failed to do so and never responded to the Office of Attorney Regulation Counsel about the request for investigation in this matter.

31. Ms. Dilda needs the file from the respondent because it has original photographs of the apartment and she does not bave negatives for those photos. She has been unsuccessful in obtaining another attorney.

32. The respondent neglected this matter by failing to respond to the court's order to serve the defendant or by failing to serve them or both. It appears that the only work the respondent did on this matter was to file the complaint. He violated Colo. RPC 1.3.

38. Furthermore, the respondent failed to communicate with his client in violation of Colo. RPC 1.4(a).

34. Additionally, the respondent has retained complainant Dilda's file for no valid reason. His doing so is causing damage or potential damage to complainant Dilda. His conduct violated Colo. RPC 1.16(d) and Colo. RPC 1.15(b).

WHEREFORE, the complainant prays for relief at the conclusion hereof.

CLAIM THREE-Real Matter

35. Melody Real is the mother of Charice Real who was the respondent's client in a custody matter involving Charice's children.

36. On about November 18, 2000 Melody Real paid the respondent $1,500.00 to represent her daughter in the custody matter.

37. Soon after the representation began, the Reals attempted to learn from the respondent what was happening in the case.

38. Melody and Charice communicated to respondent that they expected the respondent to draft a visitation stipulation; however, the respondent failed to draft the document and did nothing in the case.

39. Complainant Real and her daughter received a Notice of Delay Prevention Order for the court stating that the case would be dismissed after 45 days if a hearing was not set in the Adams County District Court.

40. They attempted many times to communicate with the respondent about that order by leaving voice mail messages, but he never returned any of their numerous messages.

41. The Reals decided to retain another lawyer in this matter when they received a phone call from the respondent stating that he filed the necessary Notice to Set on February 9, 2001, just before the deadline. * After that phone call the Reals decided to hire another lawyer. :

42. On February 1, 2001, Charice Real sent a letter to the respondent terminating his services and requesting a refund on the balance of her retainer and her file.

43. - She has never heard from the respondent.

44. The respondent neglected to provide any service in this case except for the filing of a notice to set a hearing at the very last minute. His conduct violated Colo. RPC 1.8.

45. The respondent has never responded to a request for a refund of the unearned portion of the money he was paid.

46. The respondent did not do enough work to justify failing to return all of the $1,500.00.

47. In fact the respondent did not provide services of any value to Charice Real and he was obligated to return the entire $1,500.00.

48. The respondent has violated Colo. RPC 1.15(b), Colo. RPC 1.16(d), and Colo. RPC 8.4(c).

49. - Furthermore, the respondent failed to communicate with his client. He violated Colo. RPC 1.4(a).

_ WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM FOUR-Porter Matter

50. Cyndi Porter hired respondent concerning the issue of her son's visitation with his father in Great Britain.

51. Before the representation by the respondent began, on about June 14, 2000, Magistrate Schwartz of the Arapahoe County District Court conducted a hearing on Ms. Porter's Motion for Modification of Child Support and the father's Motion for Parenting Time.

~ 52. Magistrate Schwartz entered a written order that the 16-year-old son would have to visit with his father for a month every year.

58. Pursuant to that order, on July 28, 2000, the son was supposed to board a plane at DIA with his father to go to Great Britain. The son refused to go.

54. Ms. Porter contacted the respondent the following day 'and asked him to advise the court of her son's refusal.

55. ' The respondent agreed to the representation of Ms. Porter and agreed to file documents with the court showing that Ms. Porter had done everything she could to comply with the court's order.

56. «Ms. Porter also asked the respondént to file other motions to correct assertions made in proposed findings that opposing counsel, Robert Bailey, had filed with the court.

57. + On July 25, 2000, the respondent filed a Substitution of Counsel and 'a Motion for Review of the Magistrate's Order.

58. Through August, September, October and early November 2000 Ms. Porter left many. messages for the respondent to learn the status of the Motion for Review of the Magistrate's Order. Until November 2000, she never heard from the respondent.

59. In early November, Ms. Porter reached the respondent by telephone and made an appointment to see him on November 14, however, he cancelled that meeting.

60. Ms. Porter was persistent and was able to get the respondent to agree to meet with her at 6:00 p.m. on November 14, 2000.

61. Ms. Porter told the respondent at that meeting that he was fired, but he was able to persuade her to keep him on.

62. Ms. Porter agreed not to fire the respondent at that time because she had paid him $2,500.00 and did not have funds to pay another lawyer.

63. - On November 22, 2000, Judge Cheryl Post ordered that Ms. Porter submit a complete transcript of the hearing in front of the magistrate within 30 days, and any brief by her would have to be filed within 10 days of the filing of the transcript.

64. The respondent told Ms. Porter that the transcript would have to be ordered. A transcript of the tape-recorded proceedings in front of the magistrate was prepared in September 2000, but the respondent never filed it with the court.

65. On January 10, 2001, the respondent and Ms. Porter worked together on a Motion to Modify the Permanent Orders. He filed that motion on January 16, 2001. After that she tried to reach him by phone but he never called back.

66. Unbeknownst to Ms. Porter, the respondent never filed the transcript, and on January 22, 2001, Judge Post entered an order deeming the motion for review abandoned.

67. Ms. Porter went to court on February 27, 2001, and learned that the court had ruled that the appeal of the magistrate's ruling had been deemed abandoned because the respondent had failed to file the tran-seript as ordered.

68. Ms. Porter immediately hired another attorney, Janelle Oswald. Ms. Porter also fired the respondent by a telephone call February 27, 2001.

69. During the February 27, 2001 phone call, Ms. Porter asked the respondent for a complete accounting of the fees she had paid him.

70. The next day she picked up her file from the respondent and repeated her request for a full accounting. She also demanded a return of her retainer.

71. The respondent stated that he would do the accounting; however, he has never done so and he never returned any money to her.

72. In late July 2001, Ms. Porter was able to speak with the respondent, and she again asked for a refund. He told her that he would have to do an accounting and she told him that he had had 8 months to do one. He told her to do what she had to do.

73. The respondent neglected to file the transcript of the hearing in front of the magistrate with the District Court Judge. His conduct violated Colo. RPC 1.8.

74. After he was fired, the respondent failed to provide an accounting to his client of what he did for her money and whether she was owed any money that was unearned. She has requested this accounting several times. His conduct violated Colo. RPC 1.15(b).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM FIVE-Flynt Matter

75. Heidi Flynt hired the respondent to represent her in her divorce. The representation commenced in June 2000.

76. Ms. Flynt paid the respondent a retainer of $1,500.00.

77. On about June 29, 2000, the respondent filed a petition for dissolution in Jefferson County District Court. At the end of July 2000 the respondent sent a copy of the petition, and a waiver of service to Ms. Flynt's husband's attorney.

78. The respondent did not thereafter do any work on the case until October when he received a settlement proposal from Mr. Calvert, the husband's lawyer.

79. The respondent responded to the settlement letter on November 17, 2000. After that he did no further work on the case.

80. After the written settlement negotiations, Ms. Flynt tried to contact the respondent by phone. She then wrote to the respondent after receiving no return calls. In January 2001 she wrote him twice.

81. On about February 12, 2001, Ms. Flynt hired Hanna Warren to represent her. Ms. Flynt tried again to reach the respondent by phone but he never returned her call.

82, At some time (at present unknown) the respondent did execute a Substitution of Counsel and therefore knew that he had been terminated by Ms. Flynt.

88. As of October 6, 2000, the respondent had sent a bill to Ms. Flynt stating that she had a credit balance of $925.85. She has asked for a refund and an accounting but has never received either.

84. The respondent also has original papers which complainant Flynt needs. Ms. Warren has written to the respondent on complainant Flynt's behalf asking for the return of these originals; however he has never provided them.

85. The respondent stopped communicating with complainant Flynt after November 2000. His failure to communicate after that date is a violation of Colo. RPC 1.4(a).

86. Ms. Flynt had to pay all credit card marital debts since her husband left her in May 2000. She has also paid the mortgage on her house with no help from her husband since December 2000. The respondent was obligated to take action to attempt to obtain temporary and then permanent orders providing for some relief for his client. The respondent did not take any formal action in the divorcee proceeding after he filed it. He should have set the matter for temporary and/or permanent orders. The respondent has violated Colo. RPC 1.3 by failing to do anything in the formal court case after he filed the petition.

87. The respondent. did not provide an accounting to his client after he was requested to do so in violation of Colo. RPC 1.15(b).

88. - After he was terminated, the respondent failed to return complainant Flynt's file to her in violation of Colo. RPC 1.16(d). He still has original documents that he has not returned.

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM SIX-Walling Matter

89. Christine Walling hired the respondent in 1998 to represent her in her divorce.

90. The respondent had many meetings with Ms. Walling about the case.

91. The respondent did work on this case unlike some of the other matters discussed in this report.

92. Some time after the case was finished, the respondent sought to collect his fees from Ms. Walling's ex-husband, Jeff Se-berg.

93. The respondent's actions against Ms. Walling's ex-husband have put a strain on her relationship with her ex-husband.

94. Ms. Walling requested from the respondent an accounting as to what he had done to justify the amount he sought from her ex-husband.

95. The respondent never sent Ms. Walling any bills or any accounting.

96. On May 10, 2001 Ms. Walling wrote to the respondent requesting her personal files. She has never heard from him nor has she received her files.

97. The respondent has failed to return his former client's file to her in violation of Colo. RPC 1.16(d). He has also failed to provide her with an accounting of what he did for her and the fees he charged in violation of Colo. RPC 1.15(b).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM SEVEN-Failure to Respond

98. The allegations made in Claims One through Six hereinabove were made in six separate requests for investigation.

99. In each of those requests for investigation, the Office of Attorney Regulation Counsel duly notified the respondent of them and requested information from him.

100. The respondent failed to respond to any of the six requests for investigation, and he did not cooperate with the Office of Regulation Counsel.

101. The respondent's failure to respond and cooperate in each of the matters is grounds for discipline under CRCP. 251.5(d) and Colo. RPC 8.1(b).

CONCLUSION

102. The respondent's conduct as herein above described and in consideration of the American Bar Association Standards for Imposing Lawyer Discipline warrants his disbarment from the practice of law.

108. Additionally, the complainant requests that the respondent be ordered to return files, property and unearned fees as warranted based upon the allegations in this complaint.

WHEREFORE, it is prayed that the respondent be found guilty of violations of various rules of conduct which establish grounds for discipline as provided in C.R.C.P. 251.5, and the Colorado Rules of Professional Conduct and that he be disbarred and assessed the costs of these proceedings.

      . At the sanctions hearing, the People moved for dismissal of the alleged violation of Colo. RPC 1.15(d) in claim one, which was granted.

      . There is no allegation in the Complaint that Weisbard's neglect of his clients rose to the level of abandonment.

      . The PDJ granted default on the Colo. RPC 8.1(b) charge, premised upon Weisbard's failure to reasonably respond to a lawful demand for information the request for investigation from the Office of Attorney Regulation Counsel. Upon closer examination of the facts established by the entry of default and the exhibits introduced, there is no evidence that Weisbard "knowingly" failed to respond. Indeed, there is no evidence that Weisbard actually received the requests for information. See People v. Scruggs, 52 P.3d 237, 240 (Colo.O.P.D.J.2002)(holding that in four matters the respondent attorney's knowing failure to provide responses to requests for information constituted separate violations of Colo. RPC 8.1(b) based on allegations of knowing conduct set forth in complaint); People v. Segal, 40 P.3d 852 (Colo.O.P.D.J.2002)(dismissing Colo. RPC 8.1(b) based on lack of allegations that respondent attorney knowingly violated rule); People v. Powell, 37 P.3d 545, 549 (Colo.O.P.D.J.2001)(setting aside default on grounds that no evidence was presented that respondent attorney knowingly failed to respond to a request from the disciplinary authorities). Absent such proof, the default was erroneously entered as to this claim and is therefore set.aside, and the alleged violation of Colo. RPC.8.1(b) is dismissed.

      . There is no allegation in the Complaint that Weisbard engaged in knowing conversion; accordingly, no finding of knowing conversion is made.


source: Caselaw Access Project

author: ADAMS, Judge.

license: Public Domain

text:
    2002 OK CIV APP 116
    Johnnie Dwayne MYERS, Petitioner, v. WESCON CONSTRUCTION, INC., National American Insurance, Concrete Works, and The Workers' Compensation Court, Respondents.
    No. 97,498.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 11, 2002.
    Rehearing Denied Nov. 8, 2002.
    Rick Paynter, Stipe Law Firm, Tulsa, OK, for Petitioner.
    Kristin Blue Fisher, Feldman, Franden, Woodard & Farris, Tulsa, OK, for Respondents Wescon Construction, Inc. and National American Insurance.
   OPINION

ADAMS, Judge.

11 rClaimant Johnnie Myers suffered an accidental injury arising out of and in the course of his employment with Concrete Works (Employer) on the "Riverside Project." Weseon Construction, Inc. was the "principal employer" on that project and before hiring Employer to perform part of the work on the project, required Employer to provide written proof of workers' compensation coverage for its employees such as Claimant. Employer provided written proof of such coverage from its insurance agent. Unfortunately, through no fault of Employer, no policy was ever issued, and Employer did not have workers' compensation coverage.

T2 Claimant joined Weseon and its insurance carrier, National American Insurance (hereafter Principal Employer, collectively) to his workers' compensation claim case, arguing Principal Employer was liable for his benefits under 85 O.S.S8upp.1998 § 11. Although the trial judge concluded Principal Employer was liable based on a finding that the Principal Employer did not rely on the proof of insurance furnished by Employer's agent, on en bane appeal, the three-judge panel concluded that finding was against the clear weight of the evidence, vacated relevant portions of the trial judge's order and replaced them with new provisions exonerating Principal Employer from liability. This left Claimant with an award of benefits against only Employer.

T3 In this review proceeding, Claimant does not challenge the factual conclusion that Principal Employer relied upon the proof of coverage from Employer's insurance agent. Rather, Claimant argues (1) a "principal employer" may not escape the secondary liability provisions of § 11 by reliance on a certificate of insurance coverage because, he says, the statute confers that ability only on a "independent contractor" and (2) Sloan v. Ringwald, 1996 OK CIV APP 162, 940 P.2d 234, which involved a Certificate of Non-Coverage, should be applied to invalidate any statutory exemption from lability which Principal Employer might otherwise possess. Both of these arguments present questions of law.

T4 To support his first argument, Claimant relies upon the language of § 11(B)(1) which allows an "independent contractor" to escape liability to the employees of any "subcontractor" when the "independent contractor relies in good faith on proof of a valid workers' compensation insurance policy issued to a subcontractor of the independent contractor." Because the Workers' Compensation Court found Weseon to be a "principal employer," Claimant argues it may not rely on that provision.

115 However, Principal Employer does not rely on § 11(B)(1) but on § 11(B)(2), which provides, in pertinent part, °

if a principal employer relies in good faith on proof of a valid workers' compensation insurance policy issued to an independent contractor of the employer or to a subcontractor of the independent contractor ... then the principal employer shall not be liable for injuries of any employees of the independent contractor or subcontractor.

Section 11(B)(2) clearly provides for an exemption from secondary liability by a principal employer so long as the principal employer relies in good faith upon proof of a valid workers' compensation insurance policy. We reject Claimant's first argument.

T6 Similarly, we reject the second argument because Sloan does not apply to these facts. In Sloan, another division of this Court held this same provision of § 11(B)@) unconstitutional insofar as it allowed a principal employer or employer to rely in good faith upon a Certificate of Non-Coverage even where the individual covered by the Certificate was in fact an employee for purposes of our workers' compensation law. According to Sloan, this amounted to an improper delegation to the employer of the power to determine whether a worker was covered by the workers' compensation law.

17 No question of Claimant's status as an employee entitled to workers' compensation benefits is presented here as it was in Sloan. The provision in question here, rather than depriving Claimant of benefits, merely determines under what cireumstances a principal employer is also liable for those benefits in addition to a claimant's employer.

T8 Section 11(B)(2) only imposes liability for those benefits on a principal employer "if ... the principal employer has failed to require a compliance with the Workers' Compensation Act of this state, by the independent contractor." By allowing a principal employer to rely in good faith upon proof of insurance coverage, the Legislature has simply delineated what the principal employer must do to "require a compliance."

{9 The order of the Workers' Compensation Court is not contrary to law, and Claimant has not challenged its factual findings. Accordingly, the order is sustained.

SUSTAINED.

HANSEN, P.J., and MITCHELL, J., concur.

      . The Certificate of Non-Coverage is authorized by 40 0.S.Supp.1999 § 415.1(B), which empowers the Commissioner of Labor to issue such a certificate if the Commissioner, after a reasonable inquiry, finds the person "to be exempt from the definition of employee under Section 3 of Title 85 of the Oklahoma Statutes." Issuance of that certificate creates a rebuttable presumption that the "filer is not an employee for purposes of the Workers' Compensation Act."

      . Because Sloan is distinguishable on its facts, we need 'not decide whether we would follow its holding were we presented with a case involving a Certificate of Non-Coverage. However, at least the author of this opinion questions whether the provision invalidated in Sloan delegates any authority to the employer where the Commissioner of Labor is the issuer of the certificate and the person requesting the certificate must be the individual covered by the certificate.


author: LEHMAN, Chief Justice.

text:
    ANDERSON HIGHWAY SIGNS AND SUPPLY, INC., Appellant (Defendant), v. Marion CLOSE and Rollie Close, Appellees (Plaintiffs).
    No. 98-334.
    Supreme Court of Wyoming.
    May 4, 2000.

    Representing Appellant: Daniel M. Fowler of Fowler, Schimberg & Flanagan, P.C., Denver, CO. Argument by Mr. Fowler.
    Representing Appellees: David G. Lewis, Jackson, WY. Argument by Mr. Lewis.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

      This case was originally assigned to Justice Thomas on April 16, 1999, for the rendering of a proffered majority opinion. This case was reassigned to Chief Justice Lehman on December 16, 1999. Chief Justice Lehman distributed a proffered opinion to the court on April 5, 2000.

   LEHMAN, Chief Justice.

The only question in this case is whether, pursuant to Wyo. Stat. Ann. § 1-1-109 (amended 1986), a defendant found to be fifty percent at fault is responsible for all or only his proportionate share of damages in a case in which the plaintiffs were found to be free from negligence. The trial court concluded that, in the absence of negligence by the plaintiffs, the defendant was subject to the joint and several liability rule. We are satisfied that joint and several liability has been abrogated in Wyoming by statute in a simple negligence case, and the trial court erred when it refused to reduce the judgment against appellant, Anderson Highway Signs and Supply, Inc. (Anderson) and in favor of appellees, Marian Close and Rollie Close (the Closes). The judgment entered in the trial court is reversed, and the court is instructed to reduce the judgment against Anderson by fifty percent as the statute requires.

ISSUES

Appellant presents the following issue:

Did the trial court err as a matter of law under the 1986 version of the comparative fault statute, Wyo. Stat. § 1-1-109, when it entered judgment against. Anderson Highway Signs and Supply, Inc. ("Anderson"), for 100% of Plaintiffs' damages, even though the jury determined that Anderson was only 50% at fault and that a non-party actor, Timothy Velton, was also 50% at fault?

Appellees respond with this statement of the issue:

Is the defendant jointly and severally liable for the injuries it inflicted on the appel-lees, Marian and Rollie Close [?]

FACTS

On September 2, 1998, the Closes were driving through Carbon County on Interstate 80. While the Closes were passing through a road construction site, an Anderson crew member accidentally dropped an orange traffic cone which rolled in front of the Closes' vehicle. Mr. Close swerved and braked suddenly to avoid hitting the cone, and the Closes' vehicle was rear-ended by a vehicle driven by Timothy Velton. Both Mr. and Mrs. Close were injured. They filed a complaint against Anderson and ultimately proceeded to trial.

At trial, the Closes argued that, under the 1986 version of the comparative fault statute, Anderson would be jointly and severally liable for their total damages even if there was a non-party (Velton) also at fault for the accident. Anderson responded that joint and several liability had been eliminated and that it should only pay damages in proportion to its percentage of fault. The district court ruled that, if the jury found Mr. Close free from any negligence, Anderson would be liable for the entire amount of the Closes' damages. The issue presently before this court was preserved for appeal when the district court instructed the jury to determine the relative fault of Mr. Close, Anderson, and Velton. Because no evidence pointed to negligence on the part of Mrs. Close, her name was not included in this instruction. The Jury found Mr. Close 0% at fault and apportioned the fault equally between Anderson and Velton. The jury awarded the Closes $99,031.51 in damages. On September 10, 1998, the court entered judgment against Anderson for the full amount, plus interest and costs. Anderson appealed.

DISCUSSION

The erux of this case is whether the trial court properly interpreted the 1986 statute by requiring Anderson to pay 100% of the Closes' damages, even though the jury determined Anderson to be only 50% at fault. The question is one of statutory interpretation. Statutory interpretation is a question of law; therefore, our standard of review is de movo. Cargill v. State, Dep't of Health, Div. of Health Care Financing, 967 P.2d 999, 1001 (Wyo.1998) (citing Parker Land and Cattle Co. v. Game and Fish Comm'n, 845 P.2d 1040, 1042 (Wyo.1993)). If the conclusion of law is in accordance with the law, we affirm it; if it is not, we correct it, Parker Land and Cattle Co., 845 P.2d at 1042.

We first determine which version of the comparative fault statute controls this action. The 1986 version of the statute applies to all causes of action arising after its effective date, June 11, 1986. 1986 Wyo. Sess. Laws, ch. 24, §§ 3, 4; Halliburton Co. v. McAdams, Roux and Associates, Inc., Ti3 P.2d 158, 155 (Wyo0.1989). The 1994 version of the statute applies to causes of action arising after its effective date, July 1, 1994. 1994 Wyo. Sess. Laws, ch. 98, §§ 2, 4. Because the Closes' accident occurred on September 2, 1998, the 1986 version of statute applies, if the comparative negligence statute applies at all.

The 1986 version of the comparative negligence statute provides:

§ 1-1-109 Comparative negligence.
(a) Contributory negligence shall not bar a recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if the contributory negligence of the said person is not more than fifty percent (50%) of the total fault. Any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person recovering.
(b) The court may, and when requested by any party shall:
(1) If a jury trial:
(A) Direct the jury to find separate special verdicts determining the total amount of damages and the percentage of fault attributable to each actor whether or not a party; and
(B) Inform the jury of the consequences of its determination of the percentage of fault.
(ii) If a trial before the court without jury, make special findings of fact, determining the total amount of damages and the percentage of fault attributable to each actor whether or not a party.
(c) The court shall reduce the amount of damages determined under subsection (b) of this section in proportion to the amount of fault attributed to the person recovering and enter judgment against each defendant in the amount determined under subsection (d) of this section.
(d) Each defendant is liable only for that portion of the total dollar amount determined as damages under paragraph (b)(i) or (ii) of this section in the percentage of the amount of fault attributed to him under paragraph (b)(G) or (ii) of this section.

Wyo. Stat. Ann. § 1-1-109 (Michie June 1988 Rpl.) (hereinafter 1986 statute) (emphasis added). Clearly, if this version of the statute controls, subsection (d) would mandate that the district court was incorrect in making Anderson pay for 100% of the damages suffered by the Closes when Anderson was only 50% at fault. However, the question remains whether this statute applies.

The Closes maintain the 1986 version of the comparative negligence statute applies only to situations where the plaintiff was contributorily negligent. They also contend that, because neither Mr. nor Mrs. Close was found to be contributorily negligent, the common law doctrine of joint and several lability allows them to recover 100% of their dam-" ages from Anderson. They cite to Palmeno v. Cashen, 627 P.2d 163 (Wyo.1981) and Martinez v. City of Cheyenne, 791 P.2d 949 (Wyo.1990) to support both propositions. Anderson contends those cases are distinguishable because both applied the 1977 comparative fault statute.

We first look at Palmeno, where this court wrote: "[ulnder its own terms, § 1-1-109, supra, becomes operative in those cases only where the plaintiff is contributorily negligent. Where the plaintiff is found to have been free from negligence, the statute does not apply." 627 P.2d at 166. In that case, the 1977 statute clearly applied, as Anderson correctly points out. Id. at 165-66.

Unlike Palmeno, however, Martines is not as clear regarding which comparative negligence statute applied. In Martinez, 791 P.2d at 962-63, this court followed its ruling in Palmeno, writing:

This brings us to the two remaining questions with respect to whether reversible error was committed by the failure of the district court to include the Martinezes on the jury verdict form as actors for purposes of comparative negligence and by failing to give the proposed instruction of the State on comparative negligence. These two questions relate to the same topic and are resolved by the same rationale. The State's first contention is that § 1-1-109, W.S8.1977, requires that Mr. and Mrs. Martinez be included on the jury form to provide a three-way consideration of comparable negligence among the State, the City, and Fleetwood. In pertinent part, § 1-1-109, W.$.1977, provides:
"(b) The court may, and when requested by any party, shall:
"(1) If a jury trial:
"(A) Direct the jury to find separate special verdicts determining the total amount of damages and the percentage of fault attributable to each actor whether or not a party; and...."
The State's proposed jury instruction, which was refused, addresses this subject of comparative fault on the part of Fleet-wood and then encompasses an additional instruction mandating no recovery if there is fifty percent or more negligence attributable to Fleetwood. This statute is limited to its invocation "in those cases only where the plaintiff is contributorily negligent." Palmeno v. Cashen, 627 P.2d 163, 166 (Wyo.1981). If the evidence does not disclose negligence on the part of the plaintiff, the statute does not apply. Pal-meno. The district court ruled that there was no evidence of negligence on the part of Fleetwood that would justify its inclusion on the verdict form as an actor as to whom negligence could be attributed. Our examination of the record results in our reaching a similar conclusion and demonstrates that there was no error in the failure to give this instruction. Because Mr. and Mrs. Martinez were not negligent, the statute does not mandate their inclusion on the verdiet form. It would have been inappropriate for the district court to give an instruction that was not sustained by the evidence. See Hernandez v. Gilveli, 626 P.2d 74 (Wyo.1981); Beard v. Brown, 616 P.2d 726 (Wyo.1980); Edwards v. Harris 397 P.2d 87 (Wyo.1964). The State's attempt to distinguish Palmeno by pointing out that it was tried to a judge rather than to a jury is not effective. That distinction serves only to trigger separate sections of the statute, see § 1-1-109, W.S. 1977, but it does not make any difference in the result. The entire statute has no application if the evidence fails to disclose any negligence attributable to an actor, whether a party or not, that would justify the jury considering attributing negligence to that actor.

The Martinez case arose from an August 1, 1985 flood in Cheyenne. Under Halliburton, 773 P.2d at 155, it appears the 1977 statute would control. However, close analysis of Martinez reveals this court applied the 1986 statute. First, the quoted language in the above excerpt is clearly taken from the 1986 statute; the 1977 statute did not include a subsection (b)(i)(A). In addition, the opinion refers to the 50% contributory negligence provision, a provision not present in the 1977 statute, but present in the 1986 statute. Thus, we must conclude the Martinez court applied the 1986 statute. The matter of import is that Martines applied the 1986 statute, not whether the application of that statute was appropriate under the facts of the case. - Regardless, this does not resolve the joint and several lability issue presented in this case.

The Closes contend Martines supports its argument that the entire comparative negligence statute, including the joint and several liability provisions, does not apply when a plaintiff is not at fault. However, another careful reading of Martinez, as well as an examination of the development of the doe-trine of joint and several liability, causes us to reject this argument. In Martines, the jury, in response to a question requiring allocation of negligence, concluded the State was 100% at fault and the City of Cheyenne 0% at fault. 791 P.2d at 958. If, as Close contends, the entire statute does not apply when a plaintiff is free of negligence, the specific allocation of the percentage of negligence would not have been necessary in Martinez. Moreover, we emphasized in Martinez that "the State is responsible only for the damage that is the proximate result of its negligence." 791 P.2d at 960. Thus, we read Martines as interpreting the 1986 comparative negligence statute such that subsections (b), (c), and (d) stand alone while at the same time applying the Pailmeno rule to the effect that subsection (a) applies only if the claimant can be found to be contribu-torily negligent.

This conclusion finds further support in the development of the law of joint and several liability. Under the 1977 comparative negligence scheme, even when the plaintiff was not found to be contributorily negligent, a joint tortfeasor could sue for contribution against other tortfeasors. The statute was amended in 1986. In the preamble to those amendments, it is indicated the statute was

eliminating the doctrine of joint and several liability among joint tortfeasors; [and] providing that each defendant is liable only to the extent of his percentage of fault as compared to all other actors whether or not parties to the action....

1986 Wyo. Sess. Laws, ch. 24. Our discussion in Haderiie v. Sondgeroth, 866 P.2d 708, 708 (Wyo.1998) underscores this point. There, this court, applying the 1986 statute, recognized the effect of the legislature's decision to abolish "joint and several Hability by amending W.S. 1-1-109 to provide that a party at fault be required to pay for only his proportionate share of the fault ..." 866 P.2d at 708. We also wrote: "Iwlith the amendment of W.S. 1-1-109(d), W.S. 1-1-110(b) providing for contribution was repealed and for good reason, for after joint and several Hability was abolished, no tort-feasor would ever pay more than his proportionate share of a judgment." Id. See also Coryell v. Town of Pinedale, 745 P.2d 883, 885 (Wyo.1987) (acknowledging that "the rule of joint and several liability was abolished by the legislature in 1986.") Civen the abolishment of joint and several lability, we do not believe the legislature intended the dichotomy reached by the district court: that a non-negligent plaintiff is entitled to application of the rule of joint and several liability while a plaintiff at fault as little as 1% is not. We conclude that subsection (d) of the 1986 statute controls the joint and several Hability issue in this case.

Our analysis would be incomplete if it did not address subsequent changes to the comparative negligence (now comparative fault) statute. The Closes argue that the 1994 amendments to § 1-1-109 clearly indicate that statute applies when the claimant is free of contributory negligence. Indeed, subsection (e) indicates the statute will apply "Iwlhether or not the claimant is free of fault." Thus, they argue the 1994 amendments must be read as a substantive change to the 1986 statute and the 1986 statute should, therefore, be read to uphold the district court's action. See Department of Revenue and Taxation v. Irvine, 589 P.2d 1295, 1300 (Wyo.1979). First, not every amendment to a statute must be interpreted as a substantive change in the law. Romero v. Hoppal, 855 P2d 366, 8369 (Wyo.1998) ("'where, in the enactment of a law, the legislature employs in a subsequent clause of the same act or in later legislation on the same subject language clarifying a doubtful expression theretofore used, the court should give that language the meaning the legislature intended.'" quoting State Bd. of Equalization v. Stanolind Oil & Gas Co., 54 Wyo. 521, 540, 94 P.2d 147, 158 (1989); Matter of North Laramie Land Co., 605 P.2d 367, 373 (Wyo.1980). More importantly, we have concluded that Martines interpreted the 1986 statute in a manner consistent with the 1994 amendments. Therefore, we interpret the 1994 amendments as a clarification embodying our interpretation of the 1986 statute as found in Martinez.

CONCLUSION

Applying Wyo. Stat. Ann. § 1-1-109(d), it is clear the district court erred in assigning to Anderson the obligation of paying 100% of the Closes' damages. The plain and unambiguous language of the statute dictates that Anderson is only responsible for 50% of the damages, in proportion to its percentage of fault. We reverse the judgment and remand for entry of judgment in accordance with this opinion.

      . The 1977 statute, Wyo. Stat. Ann. § 1-1-109 (Michie 1977), provided:
      § 1-1-109 Comparative negligence.
      (a) Contributory negligence shall not bar a recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if the contributory negligence was not as great as the negligence of the person against whom recovery is sought. Any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person recovering.
      (b) The court may, and when requested by any party shall:
      (i) If a jury trial, direct the jury to find separate special verdicts;
      (ii) If a trial before the court without jury, make special findings of fact, determining the amount of damages and the percentage of negligence attributable to each party. The court shall then reduce the amount of such damages in proportion to the amount of negligence attributed to the person recovering;
      (iii) Inform the jury of the consequences of its determination of the percentage of negligence.

      . The 1994 version, Wyo. Stat. Ann. § 1-1-109 (Lexis 1999), provides in pertinent part:
      (b) Contributory fault shall not bar a recovery in an action by any claimant or the claimant's legal representative to recover damages for wrongful death or injury to person or property, if the contributory fault of the claimant is not more than fifty percent (50%) of the total fault of all actors. Any damages allowed shall be diminished in proportion to the amount of fault attributed to the claimant.
      (c) Whether or not the claimant is free of fault, the court shall:
      1) If a jury trial:
      (A) Direct the jury to determine the total amount of damages sustained by the claimant without regard to the percentage of fault attributed to the claimant, and the percentage of fault attributable to each actor; and
      (B) Inform the jury of the consequences of its determination of the percentage of fault. (ii) If a trial before the court without jury, make special findings of fact, determining the total amount of damages sustained by the claimant without regard to the percentage of fault attributed to the claimant, and the percentage of fault attributable to each actor.
      (d) The court shall reduce the amount of damages determined under subsection (c) of this section in proportion to the percentage of fault attributed to the claimant and enter judgment against each defendant in the amount determined under subsection (e) of this section.
      (e) Each defendant is liable only to the extent of that defendant's proportion of the total fault determined under paragraph (c)(i) or (ii) of this section.


author: GOLDEN, Justice.

text:
    Dora BREES, Appellant (Petitioner), v. GULLEY ENTERPRISES, INC.; and State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellees (Respondents).
    No. 99-173.
    Supreme Court of Wyoming.
    May 5, 2000.

      Representing Appellant: Donald L. Painter, Casper, Wyoming.
    Representing Appellee Gulley Enterprises, Inc.: David A. Drell of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming.
    Representing Appellee Wyoming Workers' Safety and Compensation Division: Gay Woodhouse, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; . Gerald W. Laska, Sentor Assistant Attorney General; Bernard P. Haggerty, Senior Assistant Attorney General. Argument by Mr. Haggerty.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.
   GOLDEN, Justice.

Appellant Dora Brees (Brees) appeals the denial of her claim for worker's compensation benefits and her motion for reconsideration after a hearing examiner determined that she had failed to prove the material aggravation of a pre-existing condition.

We affirm.

ISSUES

Brees presents these issues for our review:

1. Whether there was substantial evi-denee to support the determination of the hearing examiner denying compensability.
2. Whether the hearing examiner erred as a matter of law in denial of the Motion for Reconsideration.

Appellee Wyoming Workers' Safety and Compensation Division (Division) presents this single statement of the issue:

The Employee claimed she hurt her back on her third day at work; a Hearing Examiner denied benefits because of her prior back injuries and congenital back problems.
A. Was the Hearing Examiner's decision supported by substantial evidence and within her discretion?

Brees' employer, Appellee Gulley Enterprises, Inc. (Gulley), states the issues as:

1. Whether the Decision of the Office of Administrative Hearings denying benefits to the Employee-Claimant is supported by substantial evidence.
2, Whether the Decision of the Office of Administrative Hearings denying the Employee-Claimant's Motion for Reconsideration is supported by substantial evidence and not contrary to law.

FACTS

Brees claimed to have sustained a back injury on August 31, 1997, while performing her duties as a waitress. Brees was pushing a heavily laden cart that caught on something and held. She pushed and twisted the cart to free it and that motion caused pain in her back. She finished her shift; however, her pain increased and the next day her supervisor directed her to be examined at the local hospital. X-rays were taken and were not unusual; however, an MRI indicated bulging discs at two levels. She was treated and eventually referred to a neurosurgeon and underwent surgery for herniated discs at the L4-5 and LG-S1 levels. She applied for worker's compensation benefits, and the Division denied her benefits because of a preexisting condition.

Brees had been seen for back pain following a slip and fall on ice on February 5, 1997, and treated conservatively with heat and medication. There was no suggestion of any need for surgery, and the x-rays of her lumbar spine were "unremarkable." Brees was also examined on March 17, 1997, for back and lower back pain and again no abnormalities were noted in the x-rays, and she was again treated with heat and medication.

At the hearing, Brees claimed that the back pain she experienced on February 5 was not an injury, and claimed that she was seen on March 17 for hip pain and not back pain. The Division and Gulley had a general surgeon, Dr. Greer, review the medical records, and he testified by deposition that the medical reports from February 5 and March 17 indicated Brees had complained of low back pain and pain radiating into her leg. He testified that these symptoms are consistent with nerve root damage and opined that Brees' injury was a chronic injury. Breeg neurosurgeon, Dr. Metz, testified by deposition, and in its conclusions of law, the hearing examiner ruled that Dr. Metz testified that Brees' condition was the result of the August 31, 1997, injury. The hearing examiner further concluded:

3.... That it was the testimony of Dr. Metz that he was not made aware that the Employee-Claimant had suffered from any pre-existing problems with her back....
4, That the opinion testimony provided by Dr. Metz clearly indicates that he was not aware of the extent of the events which occurred to the Employee-Claimant in February of 1997 or March, 1997, specifically including, but not limited to the de-seription of the pain radiating down into her legs.

The hearing examiner concluded that Brees' failure to disclose the previous back problems resulted in her failure to meet her burden of proof to show by competent medical testimony that the August 31 injury aggravated a pre-existing condition.

Brees filed a motion for reconsideration "on grounds enumerated in subsections (a)(8), (5), and (7) under [W.R.C.P.] 59." A hearing was held on July 14, 1998, and the hearing examiner reiterated that Brees was seeking reconsideration under these grounds, and Brees did not disagree. Brees argued that Dr. Metz' testimony established that Dr. Metz knew of the prior injuries and it was his opinion that the August 31, 1997, incident resulted in an injury and caused the need for surgery. The hearing examiner determined that its decision to deny benefits was based on all of the testimony and denied the motion for reconsideration.

Brees filed a Petition for Review, and the district court issued a decision letter finding that Dr. Metz was made aware of Brees previous back problems at the deposition, and determined that the hearing examiner's factual conclusion that Dr. Metz was not aware of Brees' prior back problems when he gave his medical opinion was not supported by the evidence. The court found that, in fact, Dr. Metz was made aware of those previous problems and had testified quite strongly that it was his medical opinion that the exertion of August 31, 1997, caused the medical condition for which he performed surgery. The district court determined that because Dr. Greer's opinion was not based on appropriate expertise and accurate facts, it should probably be completely disregarded. The district court, however, upheld the denial of the benefits because substantial evidence supported the conclusion that Brees had not materially aggravated a pre-existing condition. It found that Dr. Metz was never asked whether the incident on August 31 aggravated a pre-existing condition, but he did testify that people experience a wide variation in time from herniation of a dise to the onset of pain. Concluding that it could not be determined from the record whether Brees' August 31 injury aggravated a preexisting condition, the district court upheld the determination that Brees failed to meet her burden of proof and sustained the hearing examiner's final conclusion. The district court considered whether grounds existed under Rule 59(a)(8), (5), or (7) warranting a new hearing and determined that the denial of the motion for reconsideration should be upheld. This appeal followed.

DISCUSSION

Standard of Review

When reviewing an administrative order, we are not compelled to accept any of the conclusions reached by the district court, and will review the case as if it had come directly to this Court from the agency. Howton v. State ex rel. Wyo. Workers' Comp. Div., 899 P.2d 869, 870 (Wyo.1995); Cronk v. City of Cody, 897 P.2d 476, 477 (Wyo.1995). Under the workers' compensation statutory scheme, an injury does not include "[alny injury or condition preexisting at the time of employment with the employer against whom a claim is made." Wyo. Stat. Ann. § 27-14 102(a)(xi)(F) (LEXIS 1999). A pre-existing condition may, however, be compensable if the employment aggravated, accelerated, or combined with the preexisting condition to produce the disability for which the employee is seeking benefits. Lindbloom v. Teton International, 684 P.2d 1388, 1390 (Wyo.1984) (quoting 1 Larson's Workmen's Compensation Law § 12.20 at 8-276). "The claimant has the burden of proving each essential element of her claim by a preponderance of the evidence." Hepp v. State ex rel. Wyo. Workers' Comp. Div., 881 P.2d 1076, 1078 (Wyo.1994).

On appeal, Brees does not contest the ruling that she has a pre-existing condition, and limits her appeal to the determination that Dr. Metz did not establish that the injury resulted in a material aggravation of the pre-existing condition. Whether a claimant's employment "aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact." Lindbloom, 684 P.2d at 1390. Brees had the burden of proving that the work-related injury materially aggravated the pre-existing injury resulting in a compen-sable injury. State ex rel. Wyo. Workers' Comp. Div. v. Fisher, 914 P.2d 1224, 1226-27, 1230 (Wyo.1996); Matter of Corman, 909 P.2d 966, 970 (Wyo.1996). In this case, the hearing examiner concluded in her initial order that Brees had failed in her burden to prove that her claimed injury resulted in a material aggravation of a preexisting condition. Although all parties present their arguments under a substantial evidence standard of review, we find that the hearing examiner's additional findings following the hearing on Brees' motion for reconsideration resulted in a decision affirming the conclusion that Brees had failed in her burden of proof.

When the party charged with the burden of proof has failed to meet that burden, we review the case under the arbitrary, capricious, abuse-of-discretion, or otherwise not in accordance with law standard. Keck v. State ex rel. Wyo. Workers' Comp. Div., 985 P.2d 430, 432 (Wyo.1999); City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995).

Under the arbitrary, capricious and abuse of discretion standard, we are charged with examining the entire record. Wyo. Stat. Ann. § 16-8-l1l4(c) (Lexis 1999); Utech, 895 P.2d at 452. In our examination and review of a hearing examiner's determination, we defer to the hearing examiner's findings of fact. Pederson [v. State, ex rel. Workers' Comp. Div.], 939 P.2d [740,] at 742 [(Wyo.1997)]; [Wyoming Steel & Fab., Inc. v.] Robles,, 882 P.2d [873,] at 875 [(Wyo.1994)]. We will examine conflicting and contradictory evidence to see if the hearing examiner reasonably could have made its findings based on all the evidence before it. Pederson, 939 P.2d at 742, and cases therein cited. The findings of fact may include determinations of witness credibility, as the hearing examiner is charged with determining the credibility of the witnesses. Pederson, 939 P.2d at 742; Utech, 895 P.2d at 451, In our review, we will not overturn the hearing examiner's determinations regarding witness credibility unless they are clearly contrary to the overwhelming weight of the evidence. Nellis v. Dep't of Transportation, 932 P.2d 741, 743 (Wyo.1997); Pederson, 939 P.2d at 742; Robles, 882 P.2d at 875.

Carrillo v. State ex rel. Wyo. Workers' Safety and Comp. Div., 987 P.2d 690, 693 (Wyo.1999).

Evidence of Material Aggravation

Brees contends that when an on-the-job aggravation of a pre-existing condition causes the necessity for surgery to become evident, that aggravation should be deemed a "material aggravation" and a com-pensable injury. This is true; however, the causation issue requires Brees to prove that her work-related injury, not the pre-existing condition, caused the need for the surgery. State ex rel. Wyo. Workers' Comp. Div. v. Roggenbuck, 938 P.2d 851, 853 (Wyo.1997). In Roggenbuck, we articulated that the causation determination required asking whether "it was the work effort that brought the need for surgery to a head and forced the surgery to be done at this time." Id. The Division and Gully Enterprises both contend that this factual determination is properly the province of the hearing examiner under the well-settled standard that

[tlhe agency is charged with determining "the ultimate weight to be given th{e] evidence." In addition, the agency is charged with determining the credibility of the witnesses. If the agency's decision is supported by substantial evidence, this Court "cannot substitute [its] judgment for that of the agency, but this Court is required to uphold its findings upon appeal."

Weidner v. Life Care Centers of America, 893 P.2d 706, 710 (Wyo.1995) (citations omitted) (quoting Beddow v. Employment Sec. Comm'n, 718 P.2d 12, 14 (Wyo.1986)).

In this case, our review shows that Brees presented Dr. Metz' deposition testimony as proof of causation. Dr. Metz' notes of his medical examinations do not indicate that Brees informed him of any prior back injuries; however, during the deposition, Brees' attorney made. Dr. Metz aware of her prior back injuries for the first time. When asked for his medical opinion on causation, Dr. Metz testified in relevant part:

A.... I think the onset of the pain with the twisting injury and her appearance here in the office would suggest that there was a causative relationship. That's based pretty much on the account that was provided to me. I have no independent knowledge of other types of injuries that she might have sustained.
Q. Would you consider it more likely than not that the causative exertion on August 31 caused the disks for which you have done the surgery to become symptomatic?
A. By-by history and the absence of any other injury mechanism, 1 would-I would have to say so. What she describes as causing her pain could be expected in some individuals to result in the injury that she sustained.

On cross-examination, Dr. Metz provided this information:

Q. When a disk is herniated and is pushing out on the nerve, how fast does it take for the symptoms to show up with respect to the low back pain, the pain down the legs, that type of thing?
A. It's quite variable....
Q. Okay. And your opinion today, as far as the relationship of her-the disk herniation and the August 81 of 1997 incident that she declared to you or described to you at work, is based on the history that she told to you-
A. Yes.
Q. -and, in addition, based on the history of the prior incident that Mr. Painter described to you today?
A. Yes.

As pointed out by the district court, Dr. Metz' testimony does not establish whether Brees materially aggravated her previous condition on August 31 because Dr. Metz was never directly asked whether Brees' surgery resulted from the pre-existing condition or from twisting and pushing the cart. As a consequence, Brees has not presented any evidence on the question of whether the back pain experienced when twisting and pushing the cart on August 31 materially aggravated her pre-existing condition and resulted in a compensable injury. It was her burden to provide that evidence, and its absence requires that we uphold the denial of benefits.

Brees contends that a determination that she is not entitled to benefits is prohibited by the Roggenbuck decision. In Roggenbuck, an order awarding benefits to a claimant who had a history of back problems, two previous back surgeries and a permanent partial disability of sixty percent was upheld. Under our substantial evidence standard of review, we determined that comparisons of MRI reports showing a worsening of claimant's condition, the treating physicians' statements, and the worsening of pain experienced supported the agency's decision by showing that the work-related injury forced the need for immediate surgery. Roggenbuck, 938 P.2d at 854. The evidence presented in Roggen-buck squarely addressed the issue of whether the last injury was a material aggravation of the pre-existing condition causing the need for surgery. That evidentiary demonstration was not made on behalf of Brees, and we find that Roggenbuck is not factually similar to her case requiring reversal.

Motion for Reconsideration

As permitted by agency rules, Brees brought a motion for reconsideration under some subdivisions of W.R.C.P. 59. Rule 59(a) provides in pertinent part:

(a) Grounds.-A new trial may be granted to all or any of the parties, and on all or part of the issues. On a motion for a new trial in an action tried without a jury, the court may open the judgment, if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. Subject to the provisions of Rule 61, a new trial may be granted for any of the following causes:
(1) Irregularity in the proceedings of the court, jury, referee, master or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial;
(2) Misconduct of the jury or prevailing party;
(3) Accident or surprise, which ordinary prudence could not have guarded against;
(4) Excessive damages appearing to have been given under the influence of passion or prejudice;
(5) Error in the assessment of the amount of recovery, whether too large or too small;
(6) That the verdict, report or decision is not sustained by sufficient evidence or is contrary to law;
(7) Newly discovered evidence, material for the party applying, which the party could not, with reasonable diligence, have discovered and produced at the trial;
(8) Error of law occurring at the trial.

In her motion, she specified subdivisions (a)(8), (5), and (7) as grounds for reconsideration, and it was those grounds that were considered by both the hearing examiner and the district court and found insuffi-clent to grant a new hearing. On appeal, Brees argues for reconsideration on grounds presented in subdivision (a)(6) for the first time and renews her argument for reconsideration on grounds presented in subdivision (a)(7). Appellees contend that the issue raised for the first time on appeal should not be considered. We have recently said:

"As we have consistently stated over many years, Wyoming appellate courts do not review issues raised for the first time on appeal. This rule is equally applicable to appeals from administrative decisions as to those from district courts." Shaffer v. State ex rel. Workers' Safety and Compensation Div., 960 P.2d 504, 507-08 (Wyo.1998) (quoting Nelson v. Sheridan Manor, 939 P.2d 252, 255 (Wyo.1997)). We will, however, consider two types of issues raised for the first time on appeal: jurisdictional issues and "issues of such a fundamental nature that they must be considered." WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo.1998); Ricci v. New Hampshire Ins. Co., 721 P.2d 1081, 1088 (Wyo.1986); State Tax Comm'n v. BHP Petroleum Co. Inc., 856 P.2d 428, 437-38 (Wyo.1993).

In re Pohl, 980 P.2d 816, 819 (Wyo.1999). Brees does not contend that hearing her appeal under subdivision (a)(6) presents either a jurisdictional or fundamental issue, and her argument is not considered.

Brees argues that Dr. Metz should be heard as to whether he is of the opinion that Brees suffered an injury on August 381 that materially aggravated her pre-existing condition and caused the need for surgery. She does not argue that Dr. Metz has newly discovered evidence to provide. We review denials of motions under Rule 59(a)(7) for abuse of discretion. Shaw v. Shaw, 544 P.2d 1004, 1006 (Wyo.1976). Evidence available at the time of the hearing or which can be inferred was available cannot be the basis for the grant of a new hearing as newly discovered. Id. (citing Barbour v. Barbour, 518 P.2d 12, 15 (Wyo.1974)). Brees has not made any showing that she exercised due diligence in attempting to secure this information, or that it is such newly discovered evidence as contemplated by the rule, and we find no abuse of discretion. Id.

The order of the district court upholding the denial of benefits and the denial for reconsideration is affirmed.


text:
    Shela HURLEY, Appellant (Petitioner), v. PDQ TRANSPORT, INC.; and State of Wyoming, ex rel., Wyoming Workers' Compensation Division, Appellees (Respondents).
    No. 99-152.
    Supreme Court of Wyoming.
    May 10, 2000.

      Representing Appellant Bert T. Ahl-strom, Jr., Cheyenne, Wyoming.

      Representing Appellee Wyoming Workers' Compensation Division: Gay Woodhouse, Wyoming Attorney General; John W. Ren-neisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; Bernard P. Haggerty, Senior Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   GOLDEN, Justice.

Appellant Shela Hurley appeals the denial of worker's compensation benefits by the Medical Commission following its determination that her 1997 back surgery was not causally connected to her 1991 work-related injuries to her neck and head.

We affirm.

ISSUES

The statement of the issue on appeal is:

Whether the Medical Commission's Finding of Fact, Conclusions of Law and Order that Appellant did not meet her burden by a preponderance of the evidence was arbitrary, capricious, an abuse of discretion, not in accordance with the law, unsupported by substantial evidence and contrary to the weight of the evidence. +

FACTS

On April 8, 1991, Hurley jumped up and hit her head on the bucket of a backhoe placed above her. She suffered a closed head injury and injured her neck and received worker's compensation benefits for chiropractic treatment and disability. Her chiropractic treatments included cervical, thoracic, and lumbar adjustments. During 1991 and 1992, Hurley was seen by an orthopedic surgeon, a neurologist, and a neurosurgeon without complaint of lower back pain. Chiropractic notes from July of 1992, however, recorded lumbar muscle spasm and adjustment. On September 21, 1992, Hurley's impairment evaluation was conducted and no mention of lower back pain was made. X-rays of the cervical spine showed no abnormalities, and an MRI of the head and neck showed no abnormalities; however, the evaluation concluded that the medically documented injury and its associated pain and rigidity warranted a 4% permanent partial disability award for the impairment of the neck/back.

In 1998, an additional evaluation by a neurosurgeon for back pain in her left upper extremity deemed Hurley eligible for an additional 2.5% permanent partial disability award for impairment of her back. Later in 19983, Hurley underwent examinations by a neuropsychologist and a physical medicine physician without mention of low back pain or lower back injury. In January of 1996, her chiropractor, Dr. Sweet, submitted a letter to the Workers' Compensation Division (Division) opining that Hurley had L4-5 and L5b-S1 biomechanical lesions on August 3, 1995, and referring to an MRI dated September, 1996, indicating abnormalities in this region. Dr. Sweet provided cervical and lumbar spine treatments in March, April, and September, 1996.

In June of 1996, Hurley suffered domestic violence injuries caused by her husband and was seen by emergency room physicians. She reported that she had been hit in the jaw and chest by his fist and had hit him with her right hand. She complained of pain in her chest and her right hand but denied teeth or neck pain. An examination indicated "mild tenderness along the lumbar region of the back without any spasm." Her hand was wrapped and she was instructed to apply ice to her chest and hand. No treatment was provided for her back. On September 30, 1996, Hurley received physical therapy for a back and neck injury she stated that she had received in a domestic violence incident in June of 1996. She reported that she began to notice symptoms including low back pain three weeks earlier, and her past medical history on that date was reported as including:

serious neck and closed head injury in 1991, after which time [she] underwent extensive therapy between 1991 and 1998. [She] reports that she was released to her work ... in "%s and was doing well until the domestic violence incident in 6/96.

Hurley was seen again on December 23, 1996, for low back pain and again attributed it to the domestic violence incident in June of 1996 when she was "knocked into a cabinet." She claimed that the pain had been constant since that incident. She was given nerve root injections at L4 and L5 during the winter of 1997, and she was admitted to the hospital on February 12, 1997, because of increasing low back pain and radicular type symptoms. She was diagnosed with lumbar disk disease and underwent a partial lami-nectomy at L4-L5 and filed a claim for benefits that was denied. In March of 1997, at the Division's request, orthopedic surgeon, Dr. Weiner, reviewed Hurley's medical file and noted that the September 30, 1996, MRI was the first documented evidence of low back pain and determined that her lower back pain was not caused by her 1991 injuries but was primarily due to degenerative disk disease possibly aggravated by the domestic violence incident. Dr. Weiner found the chiropractic notes and diagnosis unreliable and stated that degeneration at this level of the spine is extremely common and most likely not related in any way to the head trauma Hurley suffered in 1991.

An independent medical examiner, Dr. Walker, determined that the cause of the herniated disk rupture was the 1991 injury and not the 1996 domestic violence injuries. The Medical Commission held a hearing on April 18, 1998, and issued a written decision concluding that Hurley failed to show by a preponderance of the evidence that her disk disease is related to the 1991 work-related injury and denying benefits, The district court affirmed, and this appeal followed.

DISCUSSION

Standard of Review

A claimant requesting worker's compensation benefits has the burden of proving all essential elements of a claim by a preponderance of the evidence. Carrillo v. State ex rel. Wyo. Workers' Safety and Comp. Div., 987 P.2d 690, 692 (Wyo.1999). To prove by a preponderance of the evidence, the claimant must bring forth "proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence." Thornberg v. State ex rel. Workers' Comp. Div., 913 P.2d 863, 866 (Wyo.1996) (quoting Scherling v. Kilgore, 599 P.2d 1352, 1359 (Wyo.1979)).

When the party charged with the burden of proof has failed to meet that burden, we review the case under the arbitrary, capricious, abuse-of-discretion, or otherwise not in accordance with law standard. Keck v. State ex rel. Wyo. Workers' Safety and Comp. Div., 985 P.2d 430, 432 (Wyo.1999); City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995).

Under the arbitrary, capricious and abuse of discretion standard, we are charged with examining the entire record. Wyo. Stat. Ann. § 16-3-1l4(c) (Lexis 1999); Utech, 895 P.2d at 452. In our examination and review of a hearing examiner's determination, we defer to the hearing examiner's findings of fact. Pederson [v. State, ex rel. Worker's Comp. Div.], 939 P.2d [740] at 742 [(Wyo.1997)]; [Wyoming Steel & Fab., Inc. v.] Robles, 882 P.2d [873] at 875 [ (Wyo.1994) ]. We will examine conflicting and contradictory évi-dence to see if the hearing examiner reasonably could have made its findings based on all the evidence before it. Pederson, 939 P.2d at 742, and cases therein cited. The findings of fact may include determinations of witness credibility, as the hearing examiner is charged with determining the credibility of the witnesses. Pederson, 939 P.2d at 742; Utech, 895 P.2d at 451. In our review, we will not overturn the hearing examiner's determinations regarding witness credibility unless they are clearly contrary to the overwhelming weight of the evidence. Nellis v. Dept. of Transp., 932 P.2d 741, 743 (Wyo.1997); Pederson, 939 P.2d at 742; Robles, 882 P.2d at 875.

Carrillo, 987 P.2d at 693.

Hurley argues that the Medical Commission's conclusion that she failed to prove by a preponderance of the evidence a causal relationship ignores Dr. Walker's independent medical examination and conclusions. She claims that Dr. Walker's evidence satisfied her burden of proof by a preponderance of the evidence and the Commission's conclusion is arbitrary and capricious. The issue before the Medical Commission was whether her lumbar disk disease was caused by the 1991 work-related injury. Causal connection is a question of fact. The task of determining the credibility of the witnesses and weighing the evidence is assigned to the Medical Commission, and its determination will be overturned only if it is clearly contrary to the great weight of the evidence. Helm v. State ex rel. Wyo. Workers' Safety and Comp. Div., 982 P.2d 1236, 1237 (Wyo.1999).

In its findings of fact, the Commission stated:

Dr. Walker's evaluation relies heavily on the history provided by Ms. Hurley and assumptions made about the reasons for prior chiropractic low back adjustments. Most of the documentation of low back complaints is derived from chiropractic reports, We note low back adjustments may be considered routine chiropractic care in some instances.
We find the mechanism of Ms. Hurley's 1991 work-related injury is not consistent with low back pain or the need for a partial laminectomy and diskectomies at L4-L5 some six years later. We do not find chiropractic adjustments of the lumbar spine to be objective medical evidence of low back injury at the time of her industrial accident. Ms. Hurley makes no mention of back pain to Drs. Crane, Metz, MacGuire and Schafer and by her own report, suffered chronic low back pain following a domestic violence incident in June, 1996. We agree with Dr. Weiner, Ms. Hurley's low back condition was most likely the result of the natural progression of her degenerative disk disease, aggravated by domestic violence and is not compen-sable under the Wyoming Workers' Compensation Act.

The Commission's statement shows that it did not ignore Dr. Walker's report and conclusions; it fully considered the evidence, but found the report unreliable for the reasons stated. The Commission concluded that the history Hurley provided to Dr. Walker was contradicted by Hurley's own statements during other examinations and the 1996 MRI, and this conclusion is supported by the evidence. The Commission also determined that the chiropractic diagnosis and treatment was not objective evidence that she injured her back in her work-related accident. Because Dr. Walker based his conclusion on the chiropractic treatments and notes, the Commission gave his report no weight in their consideration of the evidence. The role of the Medical Commission is to resolve medically contested issues through the professional expertise of health care providers. See Snyder v. State ex rel. Wyo. Workers' Comp. Div., 957 P.2d 289, 295 (Wyo.1998). The Commission's role includes determining the weight to be given to medical opinion testimony, and will not be reweighed upon review. Contrary to Hurley's assertions, the Medical Commission is not legally obligated to accept the findings of an impartial, appointed independent medical examiner if, in their expertise, the Commission determines the factual basis for the report and conclusion is not credible or reliable.

The order denying benefits is affirmed.

      . It appears that the MRI was taken in September of 1996 and the doctor's letter is dated incorrectly.