author: GOLDEN, Justice.

text:
    2003 WY 4
    Thomas Avery GLENN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-153.
    Supreme Court of Wyoming.
    Jan. 15, 2003.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel, Representing Appellant. Argument by Ms. Domonkos.
    Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Yvonne A. Manske, Student Intern, of the Prosecution Assistance Program, Representing Appellee. Argument by Ms. Manske.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   GOLDEN, Justice.

[¶ 1] After two altercations with his pregnant girlfriend, Appellant Thomas Glenn was convicted of two counts of aggravated assault on a pregnant woman and one count of assault on another woman who had tried to defend her. He challenges those convictions on grounds that the State produced insufficient evidence of pregnancy, and the evidence did not support instructing the jury it could consider his attempts to intimidate witnesses as evidence of guilt. We hold that the trial court properly ruled that the State could prove pregnancy by the victim’s testimony, and that intimidation was sufficiently proved to permit an instruction that it was evidence of guilt. We affirm.

ISSUES

[¶ 2] Glenn presents the following statement of the issues with which the State agrees:

I. Whether the State failed to prove beyond a reasonable doubt two essential elements of aggravated assault on a pregnant woman?
II. Whether the court erred when it gave an intimidation instruction which was not supported by the evidence?

FACTS

[¶ 3] On August 31, 2000, Glenn’s girlfriend, Colleen Brown, was visiting friends when she was angrily confronted by Glenn who believed she was drinking while pregnant. A witness observed Glenn holding Brown by her throat against a wall, saw Glenn strike Brown, and heard Brown scream and tell Glenn to stop because he was hurting her. Others came to Brown’s rescue, and Glenn left. Later that night, Glenn and two others returned and fought with Jeremy Hopkins and Derek Stone while Brown escaped to another apartment. During a violent confrontation, Stone was stabbed, and Glenn was treated at the emergency room for a severe eye injury.

[¶ 4] On September 8, 2000, Brown visited Glenn at his home, and the two again had a physical altercation that the State alleged caused injuries to Brown. Brown’s -brother and a friend went to Glenn’s home, and he met them at the door with a knife. Police investigated and observed that Brown suffered a bloody nose, bruising, and scrapes, but she would tell them only that Glenn had shoved her, and, later at trial, she testified that, as she ran away, she had fallen but did not know how she received injuries because she had “blanked out.”

[¶ 5] Glenn was charged with two counts of aggravated assault on a pregnant woman, two counts of aggravated assault with a drawn deadly weapon, and one count of battery. Brown suffered a miscarriage in October and was not pregnant at the time of trial. Brown testified against Glenn but was vague on whether he caused her bodily injuries. Other witnesses who had personally observed Glenn’s and Brown’s actions and heard Brown’s statements testified that Glenn had inflicted the bodily injuries that she had received.

[¶ 6] During trial, several witnesses testified that Glenn had contacted them before trial and scared them when he told them not to testify. Over objection, the trial court permitted the jury to be instructed that this could be considered evidence of guilt. At the close of evidence the trial court granted defense’s motion of judgment of acquittal on one count of aggravated assault with a drawn deadly weapon but denied that motion as to the other four counts. Those charges went to jury which convicted Glenn on two counts of aggravated assault on a pregnant woman and one count of battery, but acquitted him on the other charge of aggravated assault with a drawn deadly weapon. This appeal followed.

DISCUSSION

Standard of Review

[¶ 7] Our standard. of review for sufficiency of the evidence claims requires that this Court assess whether all the evidence which was presented is adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. Robinson v. State, 11 P.3d 361, 368 (Wyo.2000).

[¶ 8] Glenn first contends that the State failed to prove beyond a reasonable doubt two elements of the crime of aggravated assault on a pregnant woman when it used hearsay evidence as proof that he inflicted bodily injury on Brown, and then failed to introduce any medical evidence of pregnancy, instead relying solely upon Brown’s and other witnesses’ testimony to prove that she was pregnant. The statute, Wyo. Stat. Ann. § 6-2-502(iv) (LexisNexis 2001), provides:

(a) A person is guilty of aggravated assault and battery if he:
(iv) Intentionally, knowingly or recklessly causes bodily injury to a woman whom he knows is pregnant.

[¶ 9] Glenn asserts that this Court has previously ruled, in Longstreth v. State, 832 P.2d 660 (Wyo.1992), that an element of a charged offense cannot be proved with hearsay testimony and it is reversible error to do so. Quoting the prosecutor’s closing argument, Glenn claims that the State relied upon one witness’ inadmissible, unreliable hearsay statement that Brown had told Glenn “stop it, you’re hurting me” as proof of bodily injury. The State contends that Longstreth is distinguishable because the hearsay involved here is admissible under the present sense impression exception to the hearsay rule found at W.R.E. 803(1) and is reliable.

[¶ 10] The record shows that, although Brown did not specifically testify that Glenn had injured her, several other witnesses testified that they personally observed Glenn striking- her and described Brown’s reactions during the incident. The hearsay testimony was not objected to by the defense and can therefore be considered substantive evidence unless its admission is plain error. Kolb v. State, 930 P.2d 1238,1246 (Wyo.1996) (discussing effect of when a present sense impression is offered as substantive evidence); Beartusk v. State, 6 P.3d 138, 145 (Wyo.2000).

[¶ 11] This factual situation is in contrast to Longstreth, where hearsay was admitted over objection on grounds that it was not substantive evidence, yet was the only evidence of an essential element of the crime. This Court, therefore, reversed the conviction for insufficient evidence. Longstreth does not require the same result in this case.

[¶ 12] Without offering a plain error analysis, Glenn contends that the hearsay testimony is unreliable because Brown contradicted the statement when she testified that Glenn did not hit or push her and she had fallen against the building, and without its admission the evidence is insufficient for a conviction. However, the statement falls under the present sense impression exception to the hearsay rule and was properly admitted. Kolb, 930 P.2d at 1246.

[¶ 13] Next, Glenn contends that witness testimony that Brown was pregnant was insufficient to prove the pregnancy element of the crime.. Brown testified that she learned that she was pregnant from her doctor, had told Glenn that she was pregnant, and, on the night of the first assault, he believed that she was drinking while pregnant and this initiated his violent behavior towards her. In cross-examination, defense counsel questioned whether Brown had medical documents as evidence of pregnancy and, although she claimed that-she had medical documents proving both the pregnancy and the miscarriage, she did not produce any documents.

[¶ 14] Our general rule states that the jury is entitled to draw any reasonable inference from the evidence presented, and it is the responsibility of the jury to resolve conflicts in the evidence if the evidence supports its verdict. See Willis v. State, 2002 WY 79, ¶ 15, 46 P.3d 890, ¶ 15 (Wyo.2002). Glenn has not provided any authority that the jury was not entitled to infer that this evidence proved Brown’s pregnancy, and we hold that the element was proved by sufficient evidence.

[¶ 15] As his final issue, Glenn contends that the district court improperly gave a jury instruction offered by the State regarding intimidation of a witness. He does not claim that the instruction is improper, but rather contends that the instruction was misleading to the jury and insufficient evidence precluded giving the instruction. That instruction was taken virtually verbatim from WPJIC 6.06, “Efforts by Defendant to Alter Evidence” and stated:

YOU ARE INSTRUCTED THAT if you find that the Defendant attempted to persuade a witness to testify falsely or attempted to intimidate a witness, then you may consider that fact in determining the question of whether the Defendant is guilty or not guilty.

[¶ 16] This Court approved a similar instruction in State v. Hines, 79 Wyo. 65, 79, 331 P.2d 605, 610 (1958), cert, denied, 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961). In 1989, we determined that this well-settled principle of law survived the enactment of the Wyoming Rules of Evidence and was an appropriate instruction if supported by the evidence. King v. State, 780 P.2d 943, 962 (Wyo.1989) (citing United States v. Reamer, 589 F.2d 769 (4th Cir.1978), cert, denied, 440 U.S. 980, 99 S.Ct. 1787, 60 L.Ed.2d 240 (1979); People v. Crandell, 46 Cal.3d 833, 251 Cal.Rptr. 227, 760 P.2d 423 (Cal.1988), cert, denied, 490 U.S. 1037, 109 S.Ct. 1936, 104 L.Ed.2d 408 (1989); State v. Clark, 209 Mont. 473, 682 P.2d 1339 (1984); State v. Van Alcorn, 136 Ariz. 215, 665 P.2d 97 (App.1983); Bradley v. State, 561 P.2d 548 (Okla.Cr.1977); 1 L. Sand, J. Siffert, W. Loughlin & S. Reiss, Modern Federal Jury Instructions ¶ 6.05, Instruction 6-16 (1989)).

[¶ 17] Glenn contends that the instruction was not supported by evidence because it showed only that when Glenn told them not to testify, the witnesses felt frightened, and the evidence indicated that any fear was caused by witness timidity. He argues that his mere statements did not rise to the level of intimidation when properly understood to mean that, by a threat, any witness is put in fear that Glenn would inflict bodily harm for testifying. The record shows that Glenn did not specifically threaten any complaining witness with bodily harm, but that all testified that Glenn’s behavior was menacing and frightening. Several of these witnesses were also victims of Glenn’s violence, and their intimidation testimony permitted the jury to infer that Glenn had menaced them in an attempt to keep them from testifying.

[¶ 18] The trial court has a duty to instruct the jury on the general principles applicable to the case, and it is our general rule in reviewing questions involving instructions that the trial judge is afforded latitude to tailor the instructions to the facts of the case, and reversible error will not be found as long as the instructions when viewed as a whole and in the context of the entire trial fairly and adequately cover the issues. King, 780 P.2d at 961-62. Defense counsel objected to this instruction, and the trial court determined that the evidence justified it. We affirm that decision.

[¶ 19] The order of judgment and conviction is affirmed.

      . Wyoming Pattern Criminal Jury Instruction 6.06 states in relevant part: “If you find that the defendant attempted to persuade a witness to testify falsely or intimidate a witness, then you may consider that fact in determining the question whether the defendant is guilty or not guilty.”


source: Caselaw Access Project

license: Public Domain

text:
    2003 WY 5
    In the Matter of the Worker’s Compensation Claim of: Penny HIMES, Appellant (Employee-Claimant), v. PETRO ENGINEERING & CONSTRUCTION, Appellee (Employer-Objector), and State of Wyoming ex rel. Wyoming Workers’ Compensation Division, Appellee (Objector-Defendant).
    No. 01-65.
    Supreme Court of Wyoming.
    Jan. 15, 2003.

      James W. Gusea, Cheyenne, Wyoming, Representing Appellant.
    Hoke MacMillan, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; David L. Delicath, Assistant Attorney General, Representing Appel-lee State .of Wyoming ex rel. Wyoming Workers’ Compensation Division. Argument by Mr. Delicath.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   GOLDEN, Justice.

[¶ 1] Worker’s compensation claimant appeals from a determination from the Medical Commission Hearing Panel that she is not entitled to a permanent partial impairment rating above the fifteen percent she has already received from the Division. Finding no error, we affirm.

ISSUES

[¶ 2] Appellant presents two issues:
I. Was the decision of the Medical Commission contrary to Penny Himes’ constitutional-right to due process; and was the decision of the Medical Commission without observance of procedure required by law in that the decision purported to determine issues that had not been raised?
II. Was the decision to uphold the permanent impairment rating of only 5% unsupported by substantial evidence in that both of the .physicians hired by the Division -reported the employee/claimant was unable to work at the time of their examinations?

Appellee simplifies the issues thus:

I. Did the Medical Commission determine issues that were not properly before it in violation of Appellant’s right to due process?
II. Did substantial evidence support the Medical Commission’s determination that Appellant is not entitled to an increased permanent impairment rating?

FACTS

[¶ 3] In 1990, Penny Himes was involved in a non-work related automobile accident in which she sustained whiplash type injuries. She testified that these injuries were resolved by 1992. On November 17, 1992, Himes was involved in a work related accident while handling scaffolding. She currently alleges she suffered neck, back and shoulder injuries as a direct result of the work related accident. She visited the hospital emergency room on November 18, 1992, and the nurse’s report from that visit indicates that Himes complained of pain in the right lower lumbar region and numbness in both legs, burning up to the shoulders, and migraine headache. There was also an indication of left thoracic pain. The diagnosis was lumbar strain.

[¶ 4] The Workers’ Compensation Division (the “Division”) initially awarded Himes temporary total disability. She was evaluated in December 1993 by Dr. Meade Davis. Dr. Davis opined that “the on-the job-injury of November 17, 1992, substantially aggravated a prior existing injury to her neck and back from a car accident in September 1990.” He stated that he believed she could benefit from appropriate physical therapy but, if given a current physical impairment rating, he would rate her at 4% whole body impairment. In May 1994, the Division and Himes stipulated and agreed to a 4% whole body permanent physical impairment rating.

[¶ 5] According to Himes, she continued to receive treatments from Jonathan Singer, D.O., between 1993 and 1996 for back and neck pain with some mention of shoulder pain. Himes testified that she saw him on a diminishing basis, eventually as infrequently as once every six months. Himes testified that her condition deteriorated during that time. In 1996 Himes discontinued treatment with Dr. Singer and went instead to a chiropractor who referred her to Dr. Ken Pettine, an orthopedic surgeon. Dr. Pettine first saw Himes in May 1996. In January 1997, Dr. Pettine performed surgery on Himes including fusion at C6 C7 and at L6 SI. After this surgery Himes was evaluated by Dr. Bruce Lockwood. Dr. Lockwood concluded that Himes had sustained an ascertainable loss and gave her a 5% impairment rating for her lumbar spine and a 5% impairment rating for her cervical spine, for a total 10% whole body impairment rating. Dr. Lockwood suggested that, although he did not have sufficient information to ascertain an acceptable apportionment, it would be appropriate to apportion the impairment between the injuries caused by the automobile accident and the injuries caused by the work accident. Despite Dr. Lockwood’s suggestion of apportionment, the Division awarded Himes a 10% permanent partial impairment rating. On April 9, 1998, the Division and Himes further stipulated and agreed to an increase in the permanent physical impairment rating to 15% whole body impairment.

[¶ 6] Shortly after this stipulation and agreement was accepted, Himes underwent surgery on her right shoulder and then surgery on her thoracic spine. The Division paid for both procedures. In 1999 Himes underwent another surgery to her cervical spine that was directly related to her 1997 fusion surgery. The Division again paid for this cervical spine surgery. Although the record is silent as to what next transpired, it appears that Himes then applied for yet another increase in her permanent partial impairment rating. The Division requested Himes be evaluated by Dr. Michael Kaplan. The Division requested that Dr. Kaplan assess only the impairment to the cervical spine. Dr. Kaplan rated her at 5% whole body impairment with regard to the cervical spine only.

[¶ 7] While the record before this Court is devoid of any objection from Himes, in her brief and in her argument before the Commission she suggests that she objected to the rating at least in part because of its limited scope. She wanted a rating for her thoracic spine and shoulder impairments as well as her cervical and lumbar spine. Seemingly in response to this objection to the first rating, the Division sent Himes to Dr. Mark Ran-gitsch for a second evaluation. The Division, however, maintained that the scope of the rating was for the cervical spine only. Dr. Rangitsch also rated Himes at 5% impairment with regard to the cervical spine only. Dr. Rangitsch also mentioned that the lack of medical intervention between 1993 and May 1996 led him to question if the cervical spine impairment was attributable to the work accident.

[¶ 8] Since neither impairment rating was above the 5% rating received earlier by Dr. Lockwood for her cervical spine, the Division denied Himes’ application for an increase in her permanent partial impairment rating. Himes requested a contested ease hearing. The Division referred the matter to the Office of the Medical Commission. At the hearing, Himes argued that she should not be subject to a permanent impairment rating because she had not yet attained a level of ascertainable loss. Himes wanted a reinstatement of her temporary total disability benefits. In the alternative, since both Dr. Kaplan and Dr. Rangitsch also stated she was not capable of working yet, she argued that her impairment rating obviously must be much higher, and it would be if all her medical impairments were rated, not just her cervical spine impairment.

[¶ 9] The Commission found that Himes had reached a level of ascertainable loss and that she was not entitled to a greater impairment rating than the 15% she already had been awarded. The Commission specifically found that Himes failed to carry her burden of proof that any of her current medical impairments are related to her 1992 work accident. The Division then contacted her health care providers and informed them that it would no longer pay for any medical treatment for Himes. Himes, timely appealed the decision of the Commission to the district court, which certified the appeal to this Court pursuant to W.R.A.P. 12.09.

STANDARD OF REVIEW

[¶ 10] We review appeals certified to us pursuant to W.R.A.P. 12.09 applying the appellate standards that are applicable to a reviewing court of the first instance. Weaver v. Cost Cutters, 953 P.2d 851, 854 (Wyo.1998). W.R.A.P. 12.09(a) limits judicial review of administrative decisions to a determination of those matters that are specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶ 11] The interpretation and correct application of the provisions of the Wyoming Worker’s Compensation Act are questions of law over which we exercise plenary review. We afford no deference to an agency’s conclusions of law and will affirm the same only if they are in accord with the law. Weaver, 953 P.2d at 855 (“When an agency has not invoked and correctly applied the correct rule of law, we correct the agency’s errors.”)

[¶ 12] When both parties submit evidence in a contested case in which factual issues are involved, we review the case under the substantial evidence test. Newman v. Wyo. Workers’ Comp. Div., 2002 WY 91, ¶ 22, 49 P.3d 163, ¶ 22 (Wyo.2002). In determining whether substantial evidence supports an agency decision, we examine the entire record. If substantial evidence exists to support an agency decision, we will not substitute our judgment for the judgment of the agency and will affirm the agency decision. Id. at ¶ 24.

DISCUSSION

[¶ 13] Himes’ issues are best resolved by first looking at the contested case hearing procedure. Himes requested a modification of her benefits. A modification can only be granted pursuant to the terms of Wyo. Stat. Ann. § 27-14-605(a) (LexisNexis 2001) that allows, in pertinent part, “for a modification of the amount of benefits on the ground of increase ... of incapacity due solely to the injury.” Himes argued she was entitled to an increase in her permanent physical impairment (PPI) rating because she had suffered an increase in incapacity due to numerous physical impairments that had arisen as the result of her work accident.

[¶ 14] The fact that the Division had paid medical benefits for Himes’ various medical conditions in the past did not preclude the Division from challenging Himes’ request for a higher PPI rating. Hall v. State ex rel. Wyoming Workers’ Comp. Div., 2001 WY 136, ¶ 14, 37 P.3d 373, ¶ 14 (Wyo. 2001) (“The Division’s uncontested award of benefits is not a final adjudication that precludes the Division from challenging future benefits.”); see also Tenorio v. State ex rel. Wyoming Workers’ Comp. Div., 931 P.2d 234, 239 (Wyo.1997). Once Himes requested an increase in her PPI rating, it became her burden to prove all essential elements of her claim by a preponderance of the evidence:

A claimant is not guaranteed future benefits on the basis of a prior award. Further, it is not the burden of the employer or the Division to prove that a claimant is not entitled to a continuation of ... benefits. Rather, the claimant has the burden of showing that he is entitled to a continuance of benefits. With respect to outstanding claims for worker’s compensation benefits, the claimant bears the burden of proving all essential elements of his claim by a preponderance of the evidence.

Snyder v. State ex rel. Wyo. Workers’ Comp. Div., 957 P.2d 289, 293 (Wyo.1998) (citations omitted). One essential element was relating all the physical ailments of which Himes was complaining to the work accident. Another essential element was providing medical evidence of a statutorily acceptable PPI rating for all such physical ailments.

[¶ 15] At the hearing then, Himes had an affirmative duty to present evidence that she was entitled to a higher PPI rating due to injuries related to her work accident. A thorough review of the record reveals that, at the hearing, Himes only argued that the doctors who provided an impairment rating should not have limited' their ratings to her cervical spine condition. She did not present any credible evidence that her other physical impairments such as her thoracic or shoulder conditions were related to her work accident. Further, Himes presented absolutely no evidence on the issue of her PPI rating. She did not present any medical evidence that her cervical spine condition was improperly rated. She did not present any medical evidence regarding a proper rating for any of her other medical conditions. Himes simply failed to offer any evidentiary basis to support a higher PPI rating than the 15% she had already been awarded. Given the state of the evidence, the Commission would have erred had it awarded a higher PPI rating.

[¶ 16] Himes’ arguments on appeal confuse the burden of proof. In her second issue, Himes alleges the Commission committed error by upholding the PPI rating of 5% to her cervical spine. She argues the 5% was not supported by substantial evidence. This argument fails to recognize that it is not the Division’s burden to substantiate its PPI rating; it is her burden to prove she is entitled to a higher PPI rating.

The burden is assigned to the claimant ... to establish every essential element of his claim by a preponderance of the evidence. Deroche v. R.L. Manning Company, Wyo., 737 P.2d 332 (1987); McCarty v. Bear Creek Uranium Company, Wyo., 694 P.2d 93 (1985); Aleo of Wyoming v. Baker, Wyo., 651 P.2d 266 (1982). The Wyoming rule is in accord with the general rule requiring that the party asserting a change of condition (increase or decrease of incapacity) must assume the burden of proof whether the party be claimant or employer. 3 A. Larson, Workmen’s Compensation Law § 81.22(c) (1983). In invoking § 27-12-606, W.S.1977 [precursor to § 27-14-605(a)], [the claimant] assumed the burden of demonstrating “increase of incapacity due solely to the injury.”

Lehman v. State ex rel. Wyoming Workers’ Comp. Div., 752 P.2d 422, 425 (Wyo.1988).

[¶ 17] Instead of putting on affirmative proof of the essential elements of her claim, she simply argued that the Division incorrectly limited the scope of the impairment rating. The primary argument advanced 'in her brief is that the “matter should be remanded to the Division ’for an appropriate rating with regard to all of the problems previously treated operatively, including her shoulder, thoracic and lumbar spine.” The purpose of the contested case hearing was for her to prove the nature and extent of her permanent physical impairments and that such impairments were directly related to her work accident. She failed to do so. The Commission correctly refused to grant Himes a PPI rating above the 15% she has already been awarded because she failed to carry her burden of proving all essential elements of her claim to a higher PPI rating.

[¶ 18] Himes’ first issue also fails to recognize her burden of proof and required administrative hearing procedures. The Commission included in its order specific findings that Himes did not meet her burden of proving that her current physical complaints are related to her work injury. Himes argues that the Commission should not have made specific findings regarding causation of her current medical complaints. Her primary contention in this regard is that causation was at issue only as a defense to her claim, “not as an ultimate issue to be decided by the Medical Commission.”

[¶ 19] Causally relating her current medical complaints to her work accident was, of course, an essential element of her claim and thus directly at issue. , The Commission made specific findings in its order that she did not meet her burden proving that any of her current medical complaints were related to her work accident. These findings by the Commission are not only appropriate, but also required.’ Pursuant to the Wyoming Administrative Procedure Act (W.A.P.A.) the Commission is charged with including in its final decision “findings of fact and conclusions of law separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of thé underlying facts supporting the findings.” Wyo. Stat. Ann. § 16-3-110 (LexisNexis 2001). We have interpreted this statutory requirement rather extensively:

Our rule' is that this statutory provision demands findings of basic facts upon all material issues in the proceeding and upon which the ultimate findings of fact or conclusions are based. FMC v. Lane, 773 P.2d 163 (Wyo.1989). In Cook v. Zoning Board of Adjustment for the City of Laramie, 776 P.2d 181, 185 (Wyo.1989), we stated:
“It is insufficient for an administrative agency to state only an ultimate fact or conclusion, but each ultimate fact or conclusion must be thoroughly explained in order for a court to determine upon what basis each ultimate fact or conclusion was reached. The court must know the why.” Geraud v. Schrader, 531 P.2d 872, 879 (Wyo.), cert, denied sub nom. Wind River Indian Education Association, Inc. v. Ward, 423 U.S. 904, 96 S.Ct. 205, 46 L.Ed.2d 134 (1975).

Mekss v. Wyoming Girls’ School, State of Wyo., 813 P.2d 185, 201-02 (Wyo.1991), cert, denied, 502 U.S. 1032, 112 S.Ct. 872, 116 L.Ed.2d 777 (1992). Given the requirement of strict compliance with § 16-3-110, the Commission was obligated to include in its order the findings upon which it based its denial of an increased PPI rating. This included findings regarding the issue of causation with regard to each medical condition Himes put at issue.

[¶ 20] While there is no error in the Commission’s making specific findings regarding causation and putting those findings in its order, we are told that the Division has used those findings to inform health care providers that it will not pay for any future medical treatments for Himes. It is important to note that the order of the Commission contains no language regarding future benefits. The separate actions of the Division are not properly before this Court on this appeal. The Division, however, concedes in its brief that it should not have made any decisions regarding Himes’ eligibility for future benefits. The Division states in its brief that Himes may submit additional claims for future benefits and will be entitled to a hearing if such are denied.

[¶ 21] Himes is not satisfied with this concession, however, because, as long as the findings regarding causation are in the order, she faces a potential problem. This potential problem is the result of the operation of the fundamental doctrines of law known as res judicata and collateral estoppel. See Slavens v. Board of County Comm’rs for Uinta County, 854 P.2d 683, 685 (Wyo.1993) (“This court has held that both res judicata and collateral estoppel apply to final adjudicative determinations by administrative tribunals.” ) The effect of the doctrines of res judicata and collateral estoppel should be well known to all attorneys. If certain conditions are met, the doctrines prevent claims and issues adjudicated in a prior contested proceeding from being relitigated between the same parties. It is not for this Court to decide if the doctrine of res judicata or collateral estoppel will apply in a future proceeding. We only note that they are available as potential defenses to the Division in a future proceeding for benefits, and it is this possibility to which Himes objects.

[¶ 22] Himes strongly urges this Court to view the issue in terms of a violation of due process. She does not, however, present any legally supported constitutional argument in her brief. Her due process argument is that she was never warned that she might lose future benefits as a result of findings made during the course of the instant proceeding. Unfortunately for Himes, the potential availability of the defense of res judicata or collateral estoppel in a future proceeding simply does not present a due process violation. She phrases her argument in terms of the Division’s determining issues that had not been raised, and thus she had no notice, but, as has been discussed already, she put causation directly at issue by bringing her claim. No due process violation is presented by the Commission’s findings that Himes failed to meet her burden of proving that her current medical conditions are related to her work accident.

CONCLUSION

[¶ 23] This case presents no due process violations. By requesting a modification in benefits, Himes put all elements of her claim at issue, including whether or not her current complaints regarding physical impairments are related to her work accident. The Commission is required under the W.A.P.A. to make findings on these issues. That there might be collateral consequences to this procedure does not implicate any constitutional due process issues. The Division has confessed that the decision of the Commission should not have been used to directly cut off future benefits so hopefully that issue is resolved.

[¶ 24] The Commission’s denial of Himes’ request for a higher PPI rating is supported by the record. Himes failed to present evi-denee supporting .that she was entitled to a modification in her benefits,

[¶ 25] Affirmed.

      . To the extent Himes references her ability to work in the phrasing of her issue, it is misleading. The only issue before the Commission was Himes' PPI rating. A PPI rating is strictly a medical question and is unrelated to the claimant's ability to work. "An injured employee's impairment shall be rated by a licensed physician using the most recent edition of the American Medical Association’s guide to the evaluation of permanent impairment.” Wyo. Stat. Ann. § 27-14-405(g) (LexisNexis 2001).

      . These decisions should only be made once a request for benefits is submitted. See In re Wright, 983 P.2d 1227, 1233 (Wyo.1999) ("the Commission lack[s] subject matter jurisdiction over future claims”).

      . The Commission clearly qualifies as an administrative tribunal pursuant to Wyo. Stat. Ann. § 27 — 14—616(b)(iv) (LexisNexis 2001): "When hearing a medically contested case, the [Commission] panel shall serve as the hearing examiner and shall have exclusive jurisdiction to make the final administrative determination of the validity and amount of compensation payable under this act.”

      .We note that, while the existence of the potential defense of res judicata or collateral estoppel does not raise due process concerns, the actual application of such defenses might. "[E]xtreme applications of the doctrine of res judicata may be inconsistent with a federal right that is 'fundamental in character.' ” Richards v. Jefferson County, Alabama, 517 U.S. 793, 797, 116 S.Ct. 1761, 1765, 135 L.Ed.2d 76 (1996).


author: CARPENETI, Justice.

text:
    David A. SPINDLE, M.D., Appellant, v. SISTERS OF PROVIDENCE IN WASHINGTON d/b/a Providence Alaska Medical Center; Alaska Regional Hospital; Anchorage Neurosurgical Associates, Inc.; John C. Godersky, M.D.; and Louis Kralick, M.D., Appellees.
    No. S-10169.
    Supreme Court of Alaska.
    Dec. 20, 2002.
    Rehearing Denied Jan. 31, 2003.

      Andrew K. Kurzmann, Attorney at Law, Anchorage, for Appellant.
    John M. Conway and Robert J. Dickson, Atkinson, Conway & Gagnon, Anchorage, for Appellee Sisters of Mercy Providence Hospital, Inc.
    Matthew K. Peterson and Scott Hendricks Leuning, Clapp, Peterson & Stowers, LLC, Anchorage, for Appellees Anchorage Neuro-surgical Associates, John Godersky, M.D., and Louis Kralick, M.D.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Dr. David K. Spindle appeals from the decision of the superior court granting summary judgment to Drs. Louis Kralick and John C. Godersky as well as their business Anchorage Neurosurgical Associates, Inc. and Sisters of Mercy Providence Hospital, Inc. on Dr. Spindle’s claims arising from his failure to obtain privileges at Providence Hospital. Because the superior court correctly found that Dr. Spindle’s failure to finish his application for privileges at the hospital rendered his antitrust and tort claims premature and thus not actionable, we affirm the decision of the superior court.

II. FACTS AND PROCEEDINGS

Dr. David K. Spindle is a neurosurgeon and is licensed to practice medicine in Alaska. Dr. Spindle has been licensed to practice in California, Nevada, and Hawaii as well.

Dr. Spindle practiced medicine at Downey Community Hospital (Downey) in California before coming to Anchorage, Alaska in 1996. Dr. Spindle came to Alaska after seeing an advertisement in a medical journal for a neurosurgeon at Alaska Native Medical Center (ANMC). Dr. Spindle worked at ANMC for approximately fourteen months.

There are a limited number of neurosurgeons in Alaska. Drs. Louis Kralick and John C. Godersky, who practice together at Anchorage Neurosurgical Associates, Inc. (ANA), and Dr. Lawrence Dempsey were the only neurosurgeons in practice when Dr. Spindle arrived. Drs. Kralick and Godersky were the only neurosurgeons with privileges at Sisters of Mercy Providence Hospital, Inc. (Providence). Dr. Godersky serves as chair of the department of surgery at Alaska Regional Hospital, Inc. (ARH) and formerly served as a member on the credentials committee and board of trustees there, as well as chief of staff. At Providence, Dr. Godersky was the subsection chairperson of neurosurgery at the time of Dr. Spindle’s application and had served as the treasurer of the medical staff. Dr. Godersky now serves as chairperson of the department of surgery at Providence.

On August 8, 1995 Dr. Spindle applied for medical privileges at ARH, and he applied for privileges at Providence on August 10. In applying to Providence, Dr. Spindle completed an appointment consent and release. In it, he acknowledged “that, as an applicant for appointment to staff membership and privileges, I have the burden of producing adequate information for a proper evaluation of the above criteria and for resolving any doubts about such qualifications.” Dr. Spindle also agreed through the release to provide any “additional information as may be requested by the hospital, its Medical Staff or their representatives.”

On November 2, 1995 Dr. Steven Floer-chinger, chair of surgery at Providence, found Dr. Spindle qualified for privileges “pending review by Dr. John Godersky, neurosurgery subsection chair.” Dr. Godersky then allegedly reviewed the file and said Dr. Spindle could have privileges. Dr. Godersky, however, refused to interview Dr. Spindle or “sign off’ on his application.

An applicant for privileges at Providence is required to complete a page naming the exact procedures for which privileges are requested. In his application for medical privileges at Providence, under neurosurgical privileges Dr. Spindle cheeked off every category of procedures except for two.

The credentials committee at Providence found certain things unusual about Dr. Spindle’s application. First, the committee foünd it unusual that Dr. Spindle’s professional liability insurance had been terminated. Second, the committee found it unusual that Dr. Spindle had professional liability claims pending at the time of his application and that his letter of reference was from a doctor outside of his specialty. Finally, the committee found it strange that Dr. Spindle wrote “board qualified in neurosurgery in 1965” on his application; This was odd because the industry term is “board eligible.” “Board eligible” means a practitioner has been accepted to take the exam for board certification. One is board eligible for a limited period of time while the exam is pending. Dr. Spindle is not certified by the American Board of Neurological Surgery, having twice failed the oral section of the board exam.

On January 10,- 1996 Douglas Bruce, Chief Executive of Providence, wrote to Dr. Spindle informing him he had been granted temporary privileges, effective January 10 through February 29, 1996. The letter also stated that Dr. Spindle had a scheduled in7 terview with the committee on January 23, 1996. Following that interview, Bruce wrote Dr. Spindle and informed him that his temporary privileges were terminated because Dr. Spindle “ha[d] not completed the application process” and that the credentials eom-mittee had tabled his application pending completion of the following:

a. The Chair of the subsection of Neurosurgery must review, interview, and provide a recommendation for privileges to the Credentials Committee.
b. Submit your plan for surgical coverage of your patients when you are not available to the Credentials Committee.
c. Submit your plan to have a Class I neurosurgeon assist you on all major cases as noted in the Department of Surgery Rules and Regulations, Eligibility, Class II..

The redacted minutes of the committee’s meeting reflect this action. • Dr. Godersky did not attend the meeting where Dr. Spindle’s privileges were terminated and alleged that he had no input in the termination of those privileges.

In early 1996, after moving to Anchorage, Dr. Spindle telephoned Dr. Kralick. During the conversation Dr. Spindle and Dr. Kralick spoke of the possibility of a cross-coverage arrangement. Dr. Godersky also spoke to Dr. Spindle on the telephone. Dr. Godersky inquired into the scope of Dr. Spindle’s practice after being asked by Dr. Spindle to consider a cross-coverage arrangement. Dr. Spindle replied that he was “performing procedures for operations on the cervical spine for degenerative disk disease and disk herni-ations, and operations on the lumbar spine for degenerative disk disease, and ... carpal tunnel surgery.” Dr. Godersky specifically asked Dr. Spindle whether he cared for pediatric patients and Dr. Spindle responded that he did not. Dr. Spindle also responded that he did not provide care for intercranial aneurysms, brain tumors, and trauma patients.

Dr. Spindle attempted to find alternate physicians to provide coverage for him in the event of his unavailability but he was unsuccessful. The doctor covering for Dr. Spindle would have to have privileges at Providence to be able to. provide coverage. According to the letter from Providence, Dr. Spindle needed general coverage for when he fell ill or was on vacation as well as coverage by a Class I neurosurgeon for major procedures. Dr. Spindle contacted Providence on February 5, 1996 to inform it that he was having problems obtaining coverage. Dr. Spindle was then informed by Providence that any qualified physician could provide his general coverage. Providence also provided Dr. Spindle with a list of doctors to contact about coverage. Dr. Spindle alleges that he was told that Drs. Kralick and Godersky would not provide coverage for him. Dr. Spindle also alleges that both “Dr. Godersky and Dr. Kralick refused to even meet with me regarding providing Class 1 neurosurgeon coverage” and that he was told by Drs. Kralick and Godersky “in essence, that I should have asked for their permission before having moved up to Alaska seeking neurosurgical privileges.” Dr. Spindle alleges he spoke to a Dr. Scott Mackie who said he would like to provide coverage for him “but declined to do so specifically stating that if he did so, Drs. Godersky and Kralick would no longer see his patients.”

As a part of the application process, the committee asked Dr. Godersky as the chairperson of Providence’s neurosurgery subsection to appear before it to respond to questions regarding Dr. Spindle’s application. During this meeting on February 27, 1996 Dr. Godersky was asked what he thought of the subcategories of practice for which Dr. Spindle sought privileges at Providence. This question most likely arose because the committee had noted that “neither [Dr. Spindle] nor his references had provided information regarding the types of surgeries [Dr. Spindle] performed and their outcomes for the recent past” despite the fact he had “requested full neurosurgical privileges.” Dr. Godersky replied that from the previous conversation he had had with Dr. Spindle, he did not believe Dr. Spindle was currently performing all of the procedures for which he had requested privileges.

Dr. Godersky thus made a “recommendation that if [Dr. Spindle] was applying for those particular privileges to take care of those problems, that [the committee] ask him to provide information documenting that he, in fact, had current, recent experience in taking care of the people that he was requesting privileges to care for.” Dr. Goder-sky did not make a recommendation as to whether Dr. Spindle was qualified to obtain privileges at Providence. Dr. Godersky does not recall being asked to interview Dr. Spindle or refusing to interview him as a part of Dr. Spindle’s application process. However, Dr. Godersky does recall that the reason he did not interview Dr. Spindle is that regardless of what he recommended, “it could be judged as [him] making a recommendation solely on the basis of economics_” Dr. Godersky claims he had no input regarding whether Dr. Spindle was granted temporary privileges. Also, Dr. Godersky testified that he never even saw all of Dr. Spindle’s application and that he reviewed only the page with the list of procedures Dr. Spindle had requested the privilege to perform at Providence.

On March 26, 1996 Providence wrote Dr. Spindle requesting he provide the discharge diagnoses and discharge summaries of all cases he had served on as the primary surgeon over the past two years for review by the department of surgery chair. Providence sometimes requires these documents to help it assess the specific privileges requested by an applicant as well as his or her current clinical competence, which must be assessed in each subcategory of privileges an applicant applies for. It is not unusual to request discharge summaries from applicants and, according to Providence’s assistant administrator “half — maybe half’ of the applicants who then supply such information are granted requested privileges. Dr. Spindle responded on April 19, 1996, but he did not provide the discharge summaries. He provided only a partial list of patients. The list came from Nancy Stoner, director of medical record services at Downey. In her cover letter to Dr. Spindle, she informed him that if he still wanted the discharge diagnoses and discharge summaries there would be a charge. On May 20, 1996 Providence again wrote Dr. Spindle, asking him to “provide a complete list of all procedures done at all hospitals during this time frame, including the discharge summaries for each patient.”

Discharge diagnoses and discharge summaries were required so that the credentials committee could “see the documentation of the outcome of a patient’s surgery and the discharge instructions — the status of the patient and what was performed and make clinical judgments about what they’re reading.” No such information was received from Dr. Spindle. On June 27, 1996, at the request of the committee, Providence inquired as to the status of its request for information and noted that if the documentation was not received by July 20, 1996, Dr. Spindle’s’application would be retired as incomplete.

On July 3 Dr. Spindle contacted Providence and informed it that he was presently in the process of collecting the information requested in the committee’s May 26, 1996 letter. In that conversation Dr. Spindle also allegedly noted that he had spoken to an attorney “with the intent to sue the medical center for not expediting his privileges, but was advised by his attorney to provide the requested information, and then if his application for privileges is not approved he will have better grounds for this lawsuit.”

On September 20, 1996 Barbara Kuper, the medical staff coordinator at Providence, not having received the requested information, telephoned Dr. Spindle. Kuper stated that when she spoke to Dr. Spindle, he was surprised Providence had yet to receive the documents. Dr. Spindle told Kuper that he would call Downey and request them again. On September 26 Dr. Spindle dropped off a large packet of documents at Providence with Kuper. However, the documents were not the discharge diagnoses and discharge summaries previously requested; rather, they were operative reports. Stoner, the director of medical record services at Downey, told Kuper that Dr. Spindle had requested only the reports about three weeks prior and that he had specifically asked for operative reports instead of discharge diagnoses and discharge summaries.

Ón Optober 16, 1996 Providence again wrote Dr. Spindle to inform him his application was still incomplete. In the letter, Providence extended the deadline, notifying Dr. Spindle that if it did not receive the discharge diagnoses and discharge summaries by October 29, 1996, his application would be retired, requiring re-application for privileges in the event he did produce the requested information.

There is a record of a phone message left by Dr. Spindle on October 29,1996 to Kuper. In it, Dr. Spindle stated that Downey did “not have the time nor the personnel to supply these discharge summaries.” Dr. Spindle further stated that he was “trying to comply, preparatory to a lawsuit if he is not put on staff.”

Providence again wrote Dr. Spindle regarding the discharge diagnoses and discharge summaries on November 6, 1996. In the letter, the chair of the committee stated that ten percent of the discharge summaries previously requested would be adequate for its review. The letter also stated that in order for Dr. Spindle’s application to be complete, he would still have to submit his plans for coverage.

On May 16,1997 Providence received a call from Stoner at Downey regarding Dr. Spindle’s request for ten percent of his discharge diagnoses and discharge summaries. Stoner stated she was “surprised since she had not heard from Dr. Spindle in such a long time.” Kuper informed Stoner that the request for ten percent of the discharge summaries dated from November .1996 and that she would check with the committee to see if it needed any further'information from her.

No discharge diagnoses or discharge summaries from Downey were ever received by Providence. Dr. Spindle did provide some discharge diagnoses and discharge summaries from his employment at ANMC.

On March 12, 1998 Dr. Spindle’s file was retired as incomplete. No action had been taken on the file since May 16,1997.

On September 16, 1999 Dr. Spindle filed his complaint in superior court against Providence, ARH, ANA, and Drs. Kralick and Godersky individually, alleging restraint of trade, negligence, and intentional interference with a prospective economic advantage. He also alleged defamation, but that claim was later dismissed in a stipulation by the parties.

On October 25, 2000 all claims against ARH were dismissed with prejudice by the superior court. ARH is not a party to this appeal.

On December 4, ANA and Drs. Kralick and Godersky moved for summary judgment on all claims. Providence joined in the motion. The superior court granted summary judgment. On March 20, 2001 Dr. Spindle objected to the entry of final judgment in the matter, arguing that all claims contained in the complaint had not been disposed of, but final judgment was entered on April 10.

Dr. Spindle now appeals.

III. STANDARD OF REVIEW

We review a trial court’s grant of summary judgment de novo and affirm its ruling if the record presents no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. We are not bound by the trial court’s articulated reasoning and can affirm a grant of summary judgment on alternative grounds, considering any matter appearing in the record, even if not considered by the trial court. All reasonable factual inferences are drawn in favor of the non-moving party.

In antitrust litigation, courts attempt to use the summary judgment process sparingly. “When an antitrust plaintiff has established a prima facie case, he [or she] should have an opportunity to prove the necessary supporting facts at trial.” However, “the very nature of antitrust litigation encourages summary disposition of such cases when permissible....”

IV. DISCUSSION

Dr. Spindle’s Failure To Complete the Application Process Was Fatal to His Claims.

Although requested by the committee, Dr. Spindle failed to provide Providence with ten percent of the discharge diagnoses and discharge summaries that it had requested from his previous work. Dr. Spindle also failed to submit a plan for surgical coverage of his patients and a plan to have a Class I neurosurgeon assist him with all major cases. Dr. Spindle claims that his failure to complete the application process was a direct result of the appellees’ anticompetitive conduct. Ap-pellees respond that Dr. Spindle’s failure to furnish the necessary information renders any claim he might have ineffective because he never finished his application for medical privileges at Providence.

We proceed cautiously when asked to review the actions of a hospital’s governing body. “Courts are in general agreement that the decisions of a hospital governing body regarding applications for hospital privileges are to be accorded great deference, and that judicial review should be limited to factors which are within the expertise of courts.” “The evaluation of professional proficiency of doctors is best left to the specialized expertise of their peers, subject only to limited judicial surveillance.” “We ree-ognize that the governing body of a hospital must be given great latitude in establishing standards which an applicant must meet before privileges will be granted.” At the same time, we may require a hospital’s procedures and standards to be fair and reasonable as well as ensure that they are not applied in an arbitrary or capricious fashion.

Appellees’ actions with respect to the discharge records comfortably satisfy the deferential review that we apply in these situations. In requiring the discharge diagnoses and discharge summaries, appellees merely required verification that Dr. Spindle maintained current clinical competence in the procedures for which he sought privileges. We have previously recognized that it may be difficult for a hospital to establish a set of objective criteria to determine whether an applicant is qualified for every medical privilege applied for. Especially in light of the telephone conversation with Dr. Goder-sky, in which Dr. Spindle admitted that his practice was limited in contrast with the number of privileges he applied for at Providence, the committee’s request for the discharge diagnoses and discharge summaries was unquestionably reasonable and within its discretion. Furthermore, Providence decreased the initial requirement — from all Downey discharge diagnoses and discharge summaries to ten percent of those records— to ensure that its request was reasonable. And Dr. Spindle signed the consent and release in his initial application, acknowledging that he had the burden to produce “adequate information for a proper evaluation of the above criteria and for resolving any doubts about such qualifications.” Finally, in creating a provision regarding the civil liability of hospitals for certain physicians, the Alaska legislature specifically found that a “hospital is responsible for exercising reasonable care in granting privileges to practice in the hospital, for reviewing those privileges on a regular basis, and for taking appropriate steps to revoke or restrict privileges in appropriate circumstances.”

Under all of these circumstances, Dr. Spindle’s failure to provide the credentials committee with the discharge summaries — information that the committee needed to assess his application — is fatal to his claims. The committee, denied the information that was necessary to determine his fitness to practice the broad range of neurosurgical procedures that Dr. Spindle sought privileges to practice at Providence, was justified in retiring his file as incomplete. Thus, without even considering Dr. Spindle’s anticompetitive conduct claims, which related to his failure to obtain coverage for his patients when he was not available and his failure to obtain Class I neurosurgeon assistance on his major cases, there was a sufficient basis for the grant of summary judgment.

The requirement to provide the committee with ten percent of his discharge diagnoses and discharge summaries was within Dr. Spindle’s control and he failed to meet it. Thus, despite Dr. Spindle’s arguments to the contrary, this case is analogous to Evers v. Edward Hospital Ass ’n. In Evers, the court held that an applicant must “provid[e] all information deemed necessary by the hospital ... as a condition precedent to the hospital’s obligation to process the application.” Dr. Spindle argues in response that this ease is inapplicable because it is a breach of contract action as opposed to an antitrust claim. But while Dr. Spindle argues that the appellees prevented him from competing for privileges, they did not prevent him from supplying the discharge records that were requested. It was within Dr. Spindle’s power to obtain the discharge summaries but he failed to do so. Based on the undisputed evidence before us from Stoner, the only inference that can be drawn from the record is that he simply chose not to do so.

We conclude, as in Evers, that the hospital’s requirement that a sample of discharge records be supplied was a reasonable condition precedent to any required action by the hospital. The failure of Dr. Spindle to comply with this request renders his claim of anticompetitive conduct and conditions in the application process premature. Until and unless Dr. Spindle complies with the clearly reasonable conditions he may not be heard to complain that other acts and practices are unreasonable and monopolistic.

V. CONCLUSION

Because there are no genuine issues of material fact in dispute, we AFFIRM the decision of the superior court granting appel-lees’ motion for summary judgment.

BRYNER, Justice, not participating.

      . The letter is actually dated January 10, 1995, but this appears to be a simple typographical error.

      . A Class I neurosurgeon is a term specific to Providence. To obtain this status, a neurosurgeon is evaluated by his or her peers and recommended to that status.

      . Current clinical competence means "peers have assessed the clinical performance of a physician and think that it is current, up-to-date and clinically appropriate — competent within the standard of practice expected in that field.”

      . Lincoln v. Interior Reg’l Hous. Auth., 30 P.3d 582, 585-86 (Alaska 2001).

      . Wright v. State, 824 P.2d 718, 720 (Alaska 1992).

      . Lincoln, 30 P.3d at 586.

      . Odom v. Lee, 999 P.2d 755, 762 (Alaska 2000) (citing KOS v. Alyeska Pipeline Serv. Co., 676 P.2d 1069, 1073 (Alaska 1983)).

      . Id.

      . Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 475 (7th Cir.1988).

      . Kiester v. Humana Hosp. Alaska, Inc., 843 P.2d 1219, 1223 (Alaska 1992).

      . Eidelson v. Archer, 645 P.2d 171, 177 (Alaska 1982) (quoting Sosa v. Bd. of Managers, 437 F.2d 173, 177 (5th Cir.1971)).

      . Kiester, 843 P.2d at 1225 (citing Sosa, 437 F.2d at 176).

      . Id. at 1223.

      . Id. at 1225.

      . AS 09.65.096(a).

      . Dr. Spindle claimed at one point that he was unable to provide the summaries because of cost. But the record shows that he never determined the actual cost. Moreover, Dr. Spindle’s request for operative reports instead of the discharge diagnoses and discharge summaries that the committee had actually requested served to increase the costs.

      . 247 Ill.App.3d 717, 187 Ill.Dec. 490, 617 N.E.2d 1211 (1993).

      . Id. 187 Ill.Dec. 490, 617 N.E.2d at 1219.

      . This conclusion also justifies the entry of summary judgment on the hospital’s immunity claims under federal and state law and Dr. Spin-die’s claim of intentional interference with prospective economic advantage, and maltes it unnecessary for us to consider those issues.


text:
    STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellant, v. M.L.L., Appellee.
    No. S-10450.
    Supreme Court of Alaska.
    Dec. 31, 2002.

      Jan A. Rutherdale, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    Robert F. Meachum, Assistant Public Defender, Juneau, and Barbara K. Brink, Public Defender, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

The superior court denied a petition to terminate the parental rights of Melanie Lewis (M.L.L.) to her two children, Teresa Hanson and Kelly Hanson. The State of Alaska, Department of Health and Social Services, Division of Family and Youth Services appeals, claiming that the superior court erred by (1) not considering the emotional harm that would be caused by breaking the bonds between the children and their foster mother and (2) not finding beyond a reasonable doubt that returning the children to their mother would likely result in serious emotional or physical damage. Because the superior court properly found that there was insufficient evidence to prove beyond a reasonable doubt that the children would be harmed by being returned to Lewis, we affirm that court’s decision not to terminate her parental rights.

II. FACTS AND PROCEEDINGS

A. Facts and Proceedings in the 1999 Termination Trial

This case involves the termination of Lewis’s parental rights to her two daughters: Teresa and Kelly. Lewis and her ex-husband, Arnold Hanson, met in Juneau in 1991, where they were both undergoing treatment with the Juneau Alliance for the Mentally Ill (JAMI). They had their first daughter, Teresa, in Anchorage in 1995. Their second daughter, Kelly, was born in October 1996 in Juneau.

In July 1997 the state petitioned for and received temporary custody under the statutes governing children in need of aid (CIÑA) and the Indian Child Welfare Act (ICWA). After several unsuccessful attempts to place the children with relatives or native families, Teresa and Kelly were finally placed with a non-native, licensed foster parent. The foster parent is a special education teacher, and has indicated that she wants to adopt the children.

The state then petitioned to terminate the parental rights of both Arnold Hanson and Lewis in 1999. They were adjudicated Children in Need of Aid in both the July 1997 temporary custody determination and the 1999 termination of parental rights decision for a number of reasons.

Teresa and Kelly were found to be children in need of aid under AS 47.10.011(H). Specifically, the superior court found that Lewis was diagnosed with schizo-affective disorder, post-traumatic stress disorder, and mild mental retardation. Lewis’s emotional disorders ranged from suicide attempts and ideation to irritable moods and poor tolerance for frustration. These disturbances appeared to be partially caused or exacerbated by Lewis being “overwhelmed by the constant daily pressures of homelessness, her husband’s illness, and the routine care of her children.”

The children were also found to be children in need of aid under AS 47.10.011(10) because Lewis’s habitual use of intoxicants impaired her ability to parent. Between 1997 and 1998, after the children were removed to foster care, Lewis resumed drinking after a period of apparent sobriety. During this period police witnessed her in a state of intoxication, sometimes severe, on at least three occasions. In one incident, a police officer, while responding to a report of a fight at the couple’s residence, found beer cans everywhere and Lewis extremely intoxicated.

The children were also found to be CINA under AS 47.10.011(8)(B)(iii) because their repeated exposure to domestic violence placed them at substantial risk of mental injury. On one occasion Hanson almost hit Lewis and Teresa with a backpack while Lewis was holding Teresa. On another occasion a physical altercation between Hanson and Lewis in front of the children left them in a state of extreme distress.

The children were also found to be CINA under AS 47.10.011(9) because of neglect by Hanson and Lewis. The parents failed to feed and clothe their children adequately on several occasions. Additionally, Hanson and Lewis irrationally removed their children from the security of Juneau’s Glory Hole shelter and their trailer on separate occasions to spend the night outside because they did not feel safe in those secure places. The couple also failed to provide adequately for their children’s health, as both children were constantly sick and Kelly’s serious health problems (pneumonia and seizures) were only treated due to the intervention of third parties. Additionally, the children were not bathed regularly and the house lacked toothbrushes, towels, soap, shampoo, and toilet paper for them. The children were assessed as having significant developmental delays in 1997, and one expert said that the neglectful environment put them at high risk of developmental delay.

After Teresa and Kelly were placed with their foster parent, Lewis continued to exhibit problematic behavior for a relatively short period of time. At one point Lewis and Hanson cashed an agency check, meant to provide for the cost of a trip to visit their children, in order to buy alcohol. Additionally, the children suffered from serious regression after visits by Lewis and Hanson in December 1997 and April 1998. By mid-1998 Lewis made some improvements in her ability to care for Teresa and Kelly by ending her relationship with Hanson, stopping her use of alcohol, and beginning a relationship with Ron Lewis, a stable man who does not drink.

In 1999, based on the above facts, the superior court terminated the parental rights of Hanson, a decision that this court affirmed in A.H. v. State. In that decision the superior court also found that

there is clear and convincing evidence that [Melanie Lewis] failed, within a reasonable time, to remedy the conduct and conditions that place the children at substantial risk so that returning the children to the parent would place the children at substantial risk of physical or mental injury.

Nonetheless, the superior court held that the state failed to prove beyond a reasonable doubt, as required for the termination of parental rights under the ICWA, that the children would sustain serious emotional or physical damage if returned to their mother. The court based this finding on Lewis having her substance abuse under control, living with Ron Lewis, and making more intelligent decisions such as avoiding Hanson. The superior court also held a visitation and placement hearing in September 1999 in which it ultimately ordered visitation between the children and their mother under the supervision of the maternal grandparents. The state did not appeal the superior court’s decision.

B. Facts and Proceedings Between the 1999 Termination Trial and the Current Trial

Between the 1999 termination trial and this proceeding, Lewis made significant progress. The superior court found that she was “clean and sober” for the additional two-year period between the 1999 termination proceeding and the current action. She also maintained a stable marriage with Ron Lewis, her new husband, free of the domestic violence that endangered the children during her marriage to Hanson. Her mental health improved to the point where she was not being actively treated by JAMI and her con-servatorship was terminated. Lewis visited her children on four occasions between August 2000 and October 2001 and fulfilled the requirements of her DFYS case plan. Additionally, the social worker’s visits, including at least one unannounced visit, revealed a clean apartment with no evidence of alcohol use or domestic violence.

Teresa and Kelly have lived with their current foster mother in Sitka since December 1997. According to Dr. Sheila Clarson, a child psychologist who conducted an assessment of the children’s interactions with their mother, grandmother, and foster mother, the children have developed significant attachments to their foster mother during the more than four years in which they have lived with her. Dr. Clarson also testified that severing these bonds between the children and their foster mother would be traumatic and might lead to a number of psychological and developmental problems.

Despite Lewis’s substantial progress since the 1999 trial in which the superior court found that there was insufficient evidence to terminate her parental rights, the state filed a second petition to terminate Lewis’s parental rights in July 2001. Following trial held on October 29-31, 2001 the superior court again found, based upon the above evidence, that it would be in the children’s best interest to terminate Lewis’s parental rights and allow them to be adopted by their foster mother. But the superior court again “could not find beyond a reasonable doubt that returning the children to the mother would likely result in serious emotional or physical damage.” The court therefore denied the state’s petition to terminate Lewis’s parental rights under the ICWA. The court also continued the children’s placement with their foster mother and noted that visitation between the children and both Lewis and her parents had been hampered by the foster mother and must be improved. The state appeals the superior court’s decision to deny termination of Lewis’s parental rights.

III. STANDARD OF REVIEW

We uphold the superior court’s factual findings unless they are clearly erroneous. Factual findings are held to be clearly erroneous if a review of the entire record leaves us “with the definite and firm conviction that a mistake has been made.”

Whether the superior court’s “findings comport with the requirements of ICWA involves a question of law and will be reviewed de novo.” Under this standard of review, we will “adopt the rule of law that is most persuasive in light of precedent, reason and policy.”

IV. DISCUSSION

A. The Superior Court Did Not Err by Not Considering the Likelihood that Granting Custody to Melanie Lewis Would Cause Severe Harm to Teresa and Kelly by Breaking Their Bonds with Their Foster Mother.

The state argues that the superior court erred by not considering the potential harm that breaking the bond between the children and their foster mother would cause Teresa and Kelly. The state bases this argument on ICWA § 1912(f), which they claim must be read in conjunction with the Adoption and Safe Families Act (ASFA), to impose a requirement that Lewis remedy her conduct in a timely manner. They claim that this timeliness requirement mandates that courts consider the bonds between the children and the foster mother in determining whether granting custody to the biological parents is likely to result in serious emotional or physical damage to the children. Because the superior court considered the potential harm that the children would suffer from the severing of their bond with their foster mother, we decline to address whether the ICWA requires that these bonds be considered.

The superior court considered the children’s attachment to the foster mother in determining that termination of Lewis’s parental rights would be in the children’s best interests under the preponderance of the evidence burden of proof required by Alaska Child in Need of Aid Rule 18(c)(2)(C). The superior court made an oral finding, in support of the above determination, that “even ignoring the bonding issue the court would find by a preponderance of the evidence that the return of the children to [Lewis] would be more likely than not to result in serious emotional harm to them.” While the state is correct that this is the only explicit mention of the bonding issue, this reference demonstrates that the superior court considered the issue. The superior court also relied on the testimony of Dr. Clarson, who testified extensively on the bonding issue. The superi- or court also impliedly took the relationship between the children and the foster mother into consideration in deciding that “placement with the foster mother is appropriate and that the children are doing well there.” We hold that the trial court’s findings, in conjunction with its reference to the bonding issue, constitute sufficient consideration of the likelihood that granting Lewis custody would cause emotional harm to Teresa and Kelly.

B. The Superior Court Did Not Err in Holding that the Evidence Did Not Prove Beyond a Reasonable Doubt that the Children Would Likely Be Seriously Harmed by Lewis’s Continued Custody over Them.

The state argues that returning the children to Lewis’s custody will likely be harmful beyond a reasonable doubt because Lewis has failed to remedy some of her damaging conduct, is incapable of remedying other damaging conduct, and that the severing of the children’s bond with the foster mother will be emotionally damaging. Put another way, the state contends that it has met its “burden to show beyond a reasonable doubt that failure to terminate parental rights is likely to result in serious emotional or physical harm to the children.” While the superior court’s findings of fact are sufficient to satisfy the lesser burdens of proof necessary to terminate parental rights under CIÑA Rule 18 in non-Indian termination cases, the superior court was not clearly erroneous in finding that'the higher burden of proof mandated by the ICWA was not met by the state. The trial court did not clearly err in finding that the evidence did not prove beyond a reasonable doubt that Lewis’s custody of her children would likely result in serious emotional or physical harm to the children.

Much of the 'state’s argument focuses on past conduct that has been sufficiently remedied so that there is at least a reasonable doubt that the conduct will likely cause serious-harm to the children in the future. It appears that Lewis might be among those parents who “are capable of changing and overcoming the problems” that made them unfit parents. Significantly, the superior court found that Lewis has sufficiently remedied the alcohol abuse that greatly endangered her children. Though she continued to abuse alcohol for eight months after Teresa and Kelly were taken from her custody, she has been sober for over three years. Likewise, Lewis has done a great deal to remedy the domestic violence that once threatened Teresa and Kelly by separating from Arnold Hanson. Lewis also appears to have responded correctly on two occasions when her eighteen year-old son Gary was drunkenly threatening her and Ron Lewis. On both occasions the police were promptly called and Lewis obtained a restraining order against Gary. Finally, since Lewis’s marriage to Ron Lewis, she has remedied many of the unhealthy conditions that posed a danger to Teresa and Kelly. Whereas there would be old food left on the floor or beer cans everywhere when Lewis lived with Hanson, the home she shares with Ron was found to be clean by a state social worker who made a surprise inspection.

The state argues that Lewis is incapable of remedying some of the conduct that poses a threat of harm to her children. Most of these arguments focus on Lewis’s continued mental illness, inability to cope with stress, limited intelligence, poor decisionmaking ability, and general lack of basic parenting skills, which the state claims cannot be remedied. This court has previously stated that “while mental illness alone cannot form the basis of a termination order, when ‘the record links the [parent’s] continuing mental illness with his past instances of extreme neglect’ there may be a basis for finding that ‘improper parental conduct [is] likely to continue.’ ” It appears to be a close question whether aspects of Lewis’s continuing mental illness will cause improper conduct in the future, and therefore prevent her from being able to care safely for her children.

In the 1999 termination proceedings the superior court found that Lewis’s mental illnesses, poor judgment, poor tolerance for frustration, and inability to cope with the stress in her life posed a risk of physical and mental injury to her children. In the current termination proceedings, the superior court relied on its factual findings from the 1999 trial. The court also relied on new testimony from Drs. Mander and Clarson. The testimony of both doctors, though partially unfavorable to Lewis, left room for doubt as to whether she and her new husband would be able to safely care for the children. When this testimony is considered along with the facts that Lewis’s mental health has improved to the point where she is not being actively treated by JAMI and that her con-servatorship has been terminated, we must conclude that it was not clear error for the superior court to find that the state had not proven that the children would likely be physically harmed if they were returned to Lewis’s custody.

Dr. Mander found that Lewis suffered from mild mental retardation, that this condition impaired her judgment, and that she possibly suffered from a major, undiagnosed mental illness. He also gave a bleak evaluation of Lewis’s ability to make extemporaneous decisions. His final conclusion was that “it is extremely unlikely that [Lewis] could function independently as an appropriate parent ... and she is particularly unable to care for special needs children.” Nonetheless, Dr. Mander testified that people with Lewis’s diagnosed disorders are treatable and that neither the disorder nor the mild mental retardation necessarily rule anyone out as an effective parent. He also found that she has greatly benefitted from terminating her abusive relationship with Arnold Hanson, entering a supportive relationship with Ron Lewis, and her continued sobriety. On cross-examination Dr. Mander said that it was only “more likely than not that some harm would come to the children if they were in [Lewis’s] care, under her ... sole supervision.” Dr. Mander also qualified his opinion that the children would likely be harmed if Lewis were caring for them by herself by noting the positive influence of Ron, and he ultimately recommended expanded, structured visitation between the children and Lewis.

Dr. Clarson’s testimony also raised concerns about Lewis’s ability to parent Teresa and Kelly. She found that Lewis had difficulty responding to both children effectively and did not set proper limits for the children. Dr. Clarson also testified that Lewis lacks many basic parenting skills and would need “personal counseling dealing with regulating feeling, regulating emotions and expressing feelings, social skills, training, [and] decision making” as a foundation in order for there to be increased contact between her and her children. Nevertheless, Dr. Clarson ultimately recommended increased visitation between the children and their biological family, saying “not only do I not believe it would be harmful to the children to have contact with their mother and grandparents, I believe that it would be helpful.” In light of this testimony, we cannot say that the superi- or court clearly erred in finding that ICWA’s reasonable doubt standard was not met.

The state argues that the significant chance that severing the bonds between the children and their foster mother will cause emotional harm, when combined with the above concerns over Lewis’s parenting ability, is sufficient to meet the ICWA’s high burden of proof. There was certainly ample testimony from Dr. Clarson supporting a conclusion that the children would be harmed by ending that relationship. Dr. Clarson concluded that after a relationship of almost four years, as of her testimony on October 29, 2001, the children saw their foster parents as their psychological parents. She also expressed concern that the children would “experience serious emotional damage if they were removed from their placement” with their foster mother. Dr. Clarson warned that the ending of this relationship would be extremely distressing to the children and would lead to them acting out and then becoming depressed, detached, and unable to succeed at school or maintain peer relationships for a very long period of time. Nonetheless, Dr. Clarson ultimately recommended more contact with Lewis and Lewis’s parents and family.- Likewise, Dr. Mander recommended increased visitation and some unsupervised visitation between the children and their biological family. Additionally, Dr. Mander testified that professionals can be of assistance in overcoming bonding issues. While this testimony did not constitute an endorsement of granting custody to Lewis, it also was not a recommendation that her parental rights be terminated, something that this court has found instructive in similar cases terminating parental rights under ICWA § 1912(f). The testimony supports the superior court’s holding that the state did not prove beyond a reasonable doubt that returning the children to Lewis would be likely to cause them severe emotional harm.

The superior court was correct to draw a careful distinction between the preponderance of the evidence and clear and convincing standards of proof used in non-ICWA proceedings and the beyond a reasonable doubt standard of proof demanded by ICWA § 1912(f). We hold that, because of the improvements in Lewis’s ability to care for her children and the doubt raised by the expert testimony of Drs. Mander and Clarson, the superior court was not clearly erroneous in finding that the state failed to prove beyond a reasonable doubt that granting Lewis custody of the children would “likely result in serious emotional or physical damage to the [children].”

V. CONCLUSION

Because the superior court did not err in finding that the state failed to meet the burden of proof demanded by ICWA § 1912(f), we AFFIRM the decision not to terminate Lewis’s parental rights.

      .Pseudonyms are used for all family members in this opinion.

      . Melanie Lewis married Ron Lewis between the 1999 child custody determination and this case. She is referred to as Melanie Hanson (M.H.) in earlier court documents and M.L.L. in current court documents.

      . Arnold Hanson's parental rights were terminated in an earlier case, which we affirmed. A.H. v. State, Dep’t of Health & Soc. Servs., 10 P.3d 1156 (Alaska 2000).

        . Id. at 1158.

      . Id. at 1159.

      . Id.

      . Id.

      . Id.

      . AS 47.10.011(11) provides:
      Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that ... the parent, guardian, or custodian has a mental illness, serious emotional disturbance, or mental deficiency of a nature and duration that places the child at substantial risk of physical harm or mental injury[.]

      . AS 47.10.011(10) provides in relevant part: Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to [conditions under which] the parent, guardian, or custodian’s ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child[J

      . AS 47.10.011(8)(B)(iii) provides:
      Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to ... conduct by or conditions created by the parent, guardian, or custodian [which] have ... placed the child at substantial risk of mental injury as a result of ... repeated exposure to conduct by a household member, as defined in AS 18.66.990, against another household member that is a crime under AS 11.41.230(a)(3) or 11.41.250-11.41.270 or an offense under a law or ordinance of another jurisdiction having elements similar to a crime under AS 11.41.230(a)(3) or 11.41.250-11.41.270[.]

      .AS 47.10.011(9) provides:
      Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that ... conduct by or conditions created by the parent, guardian, or custodian have subjected the child or another child in the same household to neglect[.]

      . A.H. v. State, 10 P.3d 1156 (Alaska 2000).

      . 25 U.S.C.A. § 1912(f) (2001).

      . Though appellants challenged the applicability of the ICWA at trial and in their points on appeal, they subsequently waived that challenge in their briefs.

      . A.H., 10 P.3d at 1160.

      . E.A. v. State, 623 P.2d 1210, 1212 (Alaska 1981).

      . L.G. v. State, Dep’t of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . 25 U.S.C.A. § 1912(f) (2001) states:
      No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

      .The state argues that the Adoption and Safe Families Act of 1997, Pub.L. 105-89, § 101, 111 Stat. 2115, 2116 (1998) (codified as amended at 42 U.S.C.A. § 671(a)(15) (Supp.2002)), imposes a requirement that Lewis remedy her conduct in a timely manner and that the reasonableness of the time taken to remedy her conduct is "determined by whether returning the child to the parent at this point 'would place the child at substantial risk of physical or mental injury.’ " The state contends that because of Lewis's failure to remedy her conduct in a timely manner (he children developed bonds with their foster mother, and that they will suffer emotional harm if these bonds are severed by returning the children to Lewis.

      .CIÑA Rule 18 states in relevant part:
      (c) Before the court may terminate parental rights, the Department must prove:

        (1) by clear and convincing evidence that (A) the child has been subjected to conduct or conditions described in AS 47.10.011 and
      (i) the parent has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
      (ii) the parent has failed, within a reasonable time, to remedy the conduct or conditions in t he home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury; or

      (2) by a preponderance of the evidence that

      (C) termination of parental rights is in the best interests of the child; and
      (3) in the case of an Indian child, by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

      . Dr. Clarson’s oral testimony dealt extensively with attachment issues. Her report also dealt with the attachment between the children and their foster mother, concluding that removal from the foster family would likely cause severe emotional distress. The report also included a number of relatively favorable evaluations of the interaction between Lewis and her children.

      . C.J. v. State, Dep’t of Health & Soc. Servs., 18 P.3d 1214, 1218 (Alaska 2001).

      . Rita T. v. State, 623 P.2d 344, 347 (Alaska 1981).

      . A.H. v. State, Dep’t of Health & Soc. Servs., 10 P.3d 1156, 1162 (Alaska 2000) (alteration in original) (quoting J.P.W. v. State, 921 P.2d 604, 608 (Alaska 1996)).

      . See J.A. v. State, Dep’t of Family & Youth Servs., 50 P.3d 395, 402 (Alaska 2002) ("Both experts recommended that J.A.’s rights to his three children be terminated” and given the experts’ high degree of familiarity with the case materials this "was more than sufficient to support the trial court's conclusion under ICWA that J.A.’s children would likely be seriously harmed if returned to him.”).

      . 25 U.S.C.A. § 1912(f) (2001).