author: WINCHESTER, J.

text:
    2001 OK 61
    Carol DeLAUGHTER, individually and as surviving spouse and next of kin and on behalf of all heirs at law of Julius Paul DeLaughter, Jr., Deceased, Plaintiff/Appellant, v. STATE of Oklahoma, ex rel OKLAHOMA STATE DEPARTMENT of MENTAL HEALTH & SUBSTANCE ABUSE SERVICES d/b/a The Crisis & Intervention Center, and Nicasio Gutierrez, Jr., M.D., jointly and severally negligent, Defendants/Appellees.
    No. 94,775.
    Supreme Court of Oklahoma.
    July 3, 2001.
    Rehearing Denied May 28, 2002.

      Jeff R. Laird, Jr., Foshee & Yaffe, Okla homa City, OK, attorneys for Appellant Carol Delaughter, individually and as surviving spouse and next of kin and on behalf of all heirs at law of Julius Paul DeLaughter, Jr., Deceased.
    Russell L. Hendrickson and Stefan Doughty, Pierce, Couch, Hendrickson, Baysinger and Green, Oklahoma City, OK, attorneys for Co-Appellee, Nicasio Gutierrez, Jr., M.D.
    Attorney General W.A. Drew Edmondson and Jerry C. Blackburn, Office of the Attorney General, State of Oklahoma, Oklahoma City, OK, attorneys for Co-Appellee State of Oklahoma, et al.
   WINCHESTER, J.

§1 This matter concerns a medical malpractice action filed by appellant against Ap-pellee Nicasio Gutierrez, Jr., M.D. (hereinafter "Dr. Gutierrez") arising from the suicide of appellant's spouse, Julius Paul DeLaughter, Jr., after appellee discharged Mr. De-Laughter from his care at Oklahoma County's Crisis and Intervention Center.

FACTS AND PROCEDURAL HISTORY

1 2 On September 10, 1998, Mr. DeLaughter was admitted to the Oklahoma County Crisis and Intervention Center, where Dr. Gutierrez provided treatment and care to him. Mr, DeLaughter was discharged from the Center on September 14, 1998. The record reflects that on September 16, 1998, Mr. DeLaughter set his house on fire and remained inside after it ignited. He sustained severe burns as a result of the blaze, from which he died on September 18, 1998.

13 The trial court granted Dr. Gutierrez's Motion for Summary Judgment, finding, as a matter of law, that he was an employee of the State of Oklahoma acting within the scope of his employment at all times during his care and treatment of Mr. DeLaughter, and thus was immune from tort liability pursuant to Oklahoma's Governmental Tort Claims Act. The Court of Civil Appeals, Division 4, affirmed the judgment of the trial court in favor of Dr. Gutierrez.

T 4 The record reveals no issues of disputed facts exist in the instant case. According ly, the sole issue we address on certiorari is whether Dr. Gutierrez is entitled to immunity under Oklahoma's Governmental Tort Claims Act. Upon de novo review, we hold that Dr. Gutierrez is immune from liability under 51 0.S.8upp.2000, § 153 and is entitled to judgment as a matter of law.

REVIEW OF SUMMARY PROCEEDINGS

T5 Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Daugherty v. Farmers Coop. Ass'n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949; Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464. "[The inquiry on appeal concerning the propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by the pleadings." Wabaunsee v. Harris, 1980 OK 52, ¶ 9, 610 P.2d 782, 785. Our ruling must be made on the record that the parties actually presented and not on a record that is potentially possible. Weeks v. Wedgewood Village, Inc., 1976 OK 72, ¶ 12, 554 P.2d 780, 784. An order that grants summary relief disposes of legal issues. Therefore, on appeal, the review we conduct is de mnovo. Brown v. Nicholson, 1997 OK 32, ¶ 5 n. 1, 935 P.2d 319, 321 n. 1; Manley v. Brown, 1999 OK 79, ¶ 22, n. 30, 989 P.2d 448, 456 n. 30. "An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Manley, 1999 OK 79, ¶ 22, n. 30, 989 P.2d at 456, n. 30.

OKLAHOMA'S GOVERNMENTAL TORT CLAIMS ACT

16 The first impression issue before us concerns whether a state-employed physician who is neither a faculty member at the University of Oklahoma Health Sciences Center or the College of Osteopathic Medicine of Oklahoma State University, nor a student at one of these institutions, is classified as a state "employee" and thus entitled to immunity for medical negligence under the Governmental Tort Claims Act while practicing medicine. Dr. Gutierrez's claim of immunity hinges upon our interpretation of the last sentence of the final paragraph contained in 51 0.S8.Supp.2000, § 152(5)(b)(8) that provides in pertinent part, the state shall not "be held Hable for tortious conduct of any physician, resident physician or intern while practicing medicine or providing medical treatment to patients."

1 7 Appellant argues that this exemption to the state's Hability applies to all state-employed physicians who commit torts while practicing medicine or providing medical treatment to patients. Under appellant's interpretation, Dr. Gutierrez would not be entitled to immunity for any alleged medical malpractice committed relative to Mr. De-Laughter. Dr. Gutierrez asserts that this exemption to immunity applies only to the individuals described at the beginning of the paragraph, to-wit: physician faculty members and staff of the University of Oklahoma Health Sciences Center and the College of Osteopathic Medicine of Oklahoma State University who are not acting in an administrative capacity or engaged in teaching duties.

¶ 8 We foreshadowed today's decision in Anderson v. Eichner, 1994 OK 136, 890 P.2d 1329, wherein we held faculty physicians were not immune from liability for torts that occurred while they practiced medicine. Our analysis of § 152 and its final paragraph included the following:

"Section 152's final provision is intended as a descriptive statement. It clearly lays down the rule that, although the defendant physicians might otherwise be considered state employees when involved in the educational process, they nonetheless stand outside the seope of their employment whenever they engage in the practice of medicine."

Anderson v. Eichner, 1994 OK 136, ¶ 14, 890 P.2d 1329, 1338.

¶ 9 This language indicates the final paragraph of § 152(5)(b)(8) describes physicians involved in the educational process-those employed by the University of Oklahoma's Health Sciences Center .or the College of Osteopathic Medicine at Oklahoma State University. We also stated in Anderson that the legislature expressed "an underlying intent to subject faculty and student physicians to individual lability for torts committed while practising medicine," (see Anderson v. Eichner, 1994 OK 136, ¶ 15, 890 P.2d 1329, 1339) evidenced by the lability limit of one hundred thousand dollars ($100,000.00) in § 154(D) that is tailored to faculty and student physicians who practice medicine. Our holding in Anderson implies that the exemption from immunity contained in § 158(5)(b)(8) pertains only to faculty physicians, resident physicians and interns at one of the two educational institutions enumerated in the final paragraph of that section'.

¶ 10 Three years after Anderson, the Court of Civil Appeals, Division 4, interpreted the exemptions contained in § 152(5), including the final sentence of the paragraph contained in § 152(5)(b)(8), in a manner consistent with the implications of our Anderson holding. Today, we visit the issue and concur.

STATUTORY CONSTRUCTION

¶ 11 The intent of the legislature controls when interpreting statutes. Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County, 2000 OK 2, ¶ 10, 995 P.2d 1124, 1125, reh'g. denied, (June 30, 1998), appeal after remand, 2000 OK 2, 995 P.2d 1124. It is presumed that the law-making body has expressed its intent in a statute and that it intended what it so expressed. TXO Production Corp. v. Okl. Corp. Comm'n, 1992 OK 39, ¶ 7, 829 P.2d 964, 969. Rules of statutory construction are employed only when legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity or conflict with other statutes. Cooper v. State ex rel. Dep't. of Public Safety, 1996 OK 49, ¶ 10, 917 P.2d 466, 468. The primary goal of rules of statutory construction is to ascertain the legislature's intent. Ledbetter v. Alcoholic Bev. Laws Enforcement, 1988 OK 117, ¶ 7, 764 P.2d 172, 179. Such intent must be gleaned from the statute in view of its general purpose and object. TXO Production Corp., 1992 OK 39 at ¶ 7, 829 P.2d at 968. In the instant case, statutory construction is unnecessary because the legislature's intent can be ascertained from the plain language of the Governmental Tort Claims Act.

LEGISLATIVE INTENT

¶ 12 Section 152(5)(b)(1) states that "physi-clans acting in an administrative capacity" are employees of this state "regardless of the place in this state where their duties as employees are performed." In addition to this subset of state employees given immunity from tort liability, § 152(5)(b)(2) defines another subset, to-wit: resident physicians and resident interns participating in graduate medical educations programs of the University of Oklahoma's Health Sciences Center or the College of Osteopathic Medicine at Oklahoma State University. Finally, § 152(5)(b)(8) defines a third subset of faculty members and staff of the two institutions-those engaged in teaching duties. The final paragraph excludes from these aforementioned subsets physician faculty members and staff of the two institutions who are not acting in an administrative capacity and who are not engaged in teaching duties. It provides that they are not considered employees or agents of the state and therefore are not entitled to immunity under the Governmental Tort Claims Act. The next sentence in the paragraph provides:

"However, in no event shall the state be held liable for the tortious conduct of any physician, resident physician or intern while practicing medicine or providing medical treatment to patients."

51 O.S.Supp.2000, § 152(5)(b)(B).

¶ 13 Although this sentence does not reiterate that the persons to whom it refers must be employed by the University of Oklahoma's Health Sciences Center or the College of Osteopathic Medicine at Oklahoma State University, every other sentence in the paragraph does so. Accordingly, this final sentence, by implication, also must refer to such persons. Any other interpretation would result in the nonsensical conclusion that the state never is liable for medical negligence. Such a conclusion also would conflict with § 154(A)(2) that provides for limits on the state's Hability in cases involving tort claims against the University Hospitals and State Mental Health Hospitals operated by the Department of Mental Health and Substance Abuse Services "for claims arising from medical negligence." Therefore, legislative intent dictates that state-employed physicians who do not fall within the exemptions contained in the final paragraph of § 152(5)(b)(8) are "employees" of the state of Oklahoma as defined by § 152(5) (see fn. 2, infra) and enjoy immunity from liability under § 152.1.

¶ 14 The exemptions from immunity contained in the final paragraph of § 152(5)(b)(8) apply only to those state-employed physicians who are physician faculty members or staff persons at the University of Oklahoma Health Sciences Center or the College of Osteopathic Medicine of Oklahoma State University, who are not engaged in teaching duties and not acting in an administrative capacity, and who are, instead, practicing medicine or providing medical treatment to patients.

CONCLUSION

{15 We hold that Dr. Gutierrez is an employee of the state of Oklahoma and is immune from tort liability under the provisions of the Governmental Tort Claims Act set forth hereinabove. The exemptions from immunity pertaining to state-employed physi-clans contained in the final paragraph of § 152(5)(b)(8) are inapplicable to Dr. Gutierrez because he was not a physician faculty member or staff person at the University of Oklahoma Health Sciences Center or the College of Osteopathic Medicine of Oklahoma State University. Appellee's Motion to Release Court of Appeals Opinion for Publication is denied.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THE TRIAL COURT AFFIRMED.

HARGRAVE, C.J.; HODGES, LAVENDER, SUMMERS, WINCHESTER, JJ., concur.

WATT, V.C.J., concurs in result.

OPALA, KATUGER, BOUDREAU, JJ., dissent.

      . 51 0.S.Supp.2000, § 153 provides:
      Liability-Scope-Exemptions-Exclusivity
      "A. The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state. The state or a political subdivision shall not be liable under the provisions of this act for any act or omission of an employee acting outside the scope of his employment.
      B. The liability of the state or political subdivision under this act shall be exclusive and in place of all other liability of the state, a political subdivision or employee at common law or other-Pas, » wise.

      . 51 0.$.$upp.2000, § 152 provides in pertinent part:
      Definitions
      "As used in the Governmental Tort Claims Act:

      5. 'Employee' means any person who is authorized to act in behalf of a political subdivision or the state whether that person is acting on a permanent or temporary basis, with or without being compensated or on a full-time or part-time basis.
      *t # sok e ok
      b. For the purpose of this act, the following are employees of this state, regardless of the place in this state where duties as employees are performed:
      (1) physicians acting in an administrative capacity,
      (2) resident physicians and resident interns participating in a graduate medical education program of the University of Oklahoma Health Sciences Center or the College of Osteopathic Medicine of Oklahoma State University, and
      (3) faculty members and staff of the University of Oklahoma Health Sciences Center and the College of Osteopathic Medicine of Oklahoma State University, while engaged in teaching duties.
      Physician faculty members and staff of the University of Oklahoma Health Sciences Center and the College of Osteopathic Medicine of Oklahoma State University not acting in an administrative capacity or engaged in teaching duties are not employees or agents of the state. However, in no event shall the state be held liable for the tortious conduct of any physician, resident physician or intern while practicing medicine or providing medical treatment to patients; ..."

      . '"The language of the Governmental Tort Claims Act is clear-faculty physicians engaged in teaching or in administrative duties and resident physicians and interns participating in a graduate medical education program are employees of the state acting within the scope of their employment unless they are practising medicine.
      Anderson v. Eichner, 1994 OK 136, ¶ 23, 890 P.2d 1329, 1340-1341

      . The court held:
      "[S]ection 152(5) deals only with the 'teaching' physicians named therein and is not a general exemption of the state from liability for every state-employed doctor while practicing medicine or providing medical treatment."
      Shepard v. State ex rel. Department of Mental Health, 1998 OK CIV APP 23, ¶ 2, 957 P.2d 553, 555, cert. denied (March 5, 1998).

      . 51 0.S.Supp.2000, § 154 provides in pertinent part:
      Extent of Liability-Punitive or exemplary damages-Joinder of parties-Severability of liability (A)(2)
      "... Except however, the limits of said liability for the University Hospitals and State Mental health Hospitals operated by the Department of Mental Health and Substance Abuse Services for claims arising from medical negligence shall be Two Hundred Thousand Dollars ($200,000.00). For claims arising from medical negligence by any licensed physician, osteopathic physician or certified nurse-midwife rendering prenatal, delivery or infant care services from September 1, 1991, through June 30, 1996, pursuant to a contract authorized by subsection (b) of Section 1-106 of Title 63 of the Oklahoma Statutes and in conformity with the requirements of Section 3 of this act, the limits of said liability shall be Two Hundred Thousand Dollars ($200,000.00); or
      3. One Million Dollars ($1,000,000.00) for any number of claims arising out of a single occurrence or accident.
      * # sok. s ok
      D. The total liability of resident physicians and interns while participating in a graduate medical education program of the University of Oklahoma College of Medicine, its affiliated institutions and the Oklahoma College of Osteopathic Medicine and Surgery shall not exceed One Hundred Thousand Dollars ($100,000.00)."

      . 51 0.S.Supp.2000, § 152.1, provides:
      Sovereign immunity
      "A. The State of Oklahoma does hereby adopt the doctrine of sovereign immunity. The state, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts.
      B. The state, only to the extent and in the manner provided in this act, waives its immunity and that of its political subdivisions. In so waiving immunity, it is not the intent of the state to waive any rights under the Eleventh Amendment to the United States Constitution."


source: Caselaw Access Project

author: LAVENDER, J. OPALA, J.,

license: Public Domain

text:
    2002 OK 2
    CITY OF TAHLEQUAH, Oklahoma, Plaintiff/Appellee, v. LAKE REGION ELECTRIC, COOPERATIVE, INC., Defendant/Appellant, and United States of America, ex rel. Rural Electrification Administration, Defendant.
    No. 95,563.
    Supreme Court of Oklahoma.
    Jan. 15, 2002.

      Lloyd E. Cole, Jr., Stilwell, OK, for the plaintiff/appellee.
    Patrick D. Shore of Derryberry, Quigley, Solomon & Naifeh, Oklahoma City, OK and Nathan H. Young, III, of Nathan H. Young, III, P.C., Tahlequah, OK, for the defendant/appellant.
    Susan Stidham Brandon, Muskogee, OK, for the defendant/United States of America, ex rel. Rural Electrification Administration.
   LAVENDER, J.

T1 Pursuant to the Uniform Certification of Questions of Law Act, 20 0.8.1991 §§ 1601 et seq., the United States Court of Appeals for the Tenth Circuit certified the following question:

Senate Bill 888 [11 0.8.1998 § 21-222] declares a "prospective and retroactive" moratorium on certain municipal condemnations of facilities of rural electric cooperatives and electric utilities. The Oklahoma Constitution, article V, section 52, provides that the legislature lacks "power to take away [a] cause of action" after commencement of a "suit." In light of statements in Oklahoma case law that condemnation matters are special proceedings, not actions at law or suits in equity, does the moratorium affect a condemnation proceeding filed before the enactment of Senate Bill 8887

I

FACTUAL PERSPECTIVE

2 On May 15, 1998 the City of Tahlequah [City] offered to purchase all of Lake Region Electric Cooperative, Inc.'s [Lake Region] electric facilities and service rights within City's corporate limits. Three days later City instituted a proceeding in the District Court of Cherokee County, Oklahoma to condemn the sought-after interests from Lake Region under the applicable provisions of 18 ©.8.1991 § 487.2(k) The United States of America, ex rel. Rural Electric Administration, [REA] was named as party-defendant because it owns a security interest in the property sought to be condemned. On June 19, 1998 REA removed the case to the United States District Court for the Eastern District of Oklahoma.

¶ 3 Upon removal Lake Region moved for the condemnation proceeding's dismissal asserting the statutory moratorium provided for by the terms of 11 § 21-222. The pertinent statutory language is:

There is hereby declared a moratorium on all municipal condemnation proceedings instituted pursuant to Section 487.2 of Title 18 of the Oklahoma Statutes, initiated pri- or to July 1, 2002. The moratorium shall also apply to all municipalities or public trusts thereof which attempt to condemn the facilities of electric public utilities or rural electric cooperatives for the purpose of utilizing such facilities for the delivery of electric power and energy. If full consumer choice in the supply of electric power and energy is implemented in this state on or before July 1, 2002, the municipal condemnation provisions authorizing municipalities with electric utilities to condemn the facilities of rural electric cooperatives contained in Section 487.2 of Title 18 of the Oklahoma Statutes is hereby repealed. If retail consumer choice is not implemented in this state on or before July 1, 2002, this moratorium shall become null and void. The moratorium provided for herein shall have prospective and retroactive application. [Emphasis added.]

The U.S. District Court denied Lake Region's motion, holding that because (1) the City-initiated condemnation proceeding is a "cause of action" brought before § 21-222's moratorium became effective and (2) Orna. Const. art V, § 52 denies the Legislature power to abridge a "cause of action" once instituted, the retrouctive moratorium could not be asserted to stop City's condemnation of Lake Region's facilities.

¶ 4 The U.S. District Court appointed commissioners to determine just compensation for the condemned electric facilities The appointed commissioners made their determinations and filed a report. Although Lake Region objected to the report, the same was confirmed on April 23, 1999. Lake Region next appealed [unsuccessfully] to the U.S. Circuit Court of Appeals for the Tenth Circuit. Lake Region then sought a jury trial. On February 29, 2000 an award of $3,746,222.00 was entered by the federal district court as just compensation for City's taking of Lake Region's property.

II

THE COURT'S FUNCTION WHEN RESPONDING TO A CERTIFIED QUESTION FROM A FEDERAL COURT

¶ 5 Because the appeal from which the certified question emanates is not before us for resolution, we refrain (1) from applying the declared state-law response to the facts elicited in the federal-court litigation and (2) from passing upon the effect of federal procedure on the issues, facts and proof in the case. We have briefly outlined the case's factual underpinnings to place the certified question in a proper perspective. It is for the United States Tenth Cireuit Court of Appeals to analyze our answer's impact on the case and facts ultimately before it. Lastly, we note that City raises constitutional questions (based upon the Legislature's alleged repeal of an act and its effect upon vested rights and proceedings instituted to enforce the same) which are neither embraced in nor inextricably intertwined with the U.S. Court of Appeals for the Tenth Circuit's certified question. To the extent that issues (constitutional or otherwise) are raised in the parties' briefs which are beyond the certified question's scope, the Court refrains from addressing the same.

III

CERTIFIED QUESTION ANSWERED

¶ 6 The posited query essentially asks whether the municipal condemnation of part of an electrification system qualifies as a "cause of action" which is protected from legislative abrogation by the provisions of OxraConst. art V, § 52, onee the same is brought in the district court,. Answered simply, a municipal condemnation of the type here in issue is a "special statutory proceeding" and not a "cause of action" as contemplated under art. V, § 52's provisions. Hence, the § 21-222 moratorium on municipal condemnations of electrification systems is not constitutionally infirm since it is outside the purview of the noted constitutional restriction on the Legislature's powers to affect a pending "cause of action."

¶ 7 Oklahoma's extant jurisprudence defines a condemnation proceeding-such as the one here in issue-as a special statutory proceeding designed to determine in a single action the damages for property taken from private persons for public use. The right of eminent domain or public taking of private property is a fundamental attribute of the sovereign state that is ciream-scribed by the provisions of OK1A.CONST. art. 2, § 24 which in essence provides that such takings can only be accomplished with just compensation. The power of condemnation lies dormant within the State until such time as the Legislature by specific enactment delineates the manner and through whom it may be exercised. Such legislative authorization was made by the provisions of 18 0.98.1991 § 437. which permitted municipalities to condemn electric transmission and distribution lines lying within their corporate limits. Since the Legislature is empowered to authorize municipal condemnations under prescribed guidelines, it can also impose a stay or moratorium on an earlier legislative ly-granted condemnation right. As the challenged legislative act [18 0.8.1991 § 487.2] is facially regular and is a valid exercise of recognized legislative authority, compliance with the statutorily-authorized condemnation procedure will not generate a civil wrong. A cause of action only arises when a wrong or breach of duty by the defendant occurs. It is what produces the necessity of action." When one complies with statutory procedure, no breach of duty happens.

¶ 8 The presence of a civil wrong is a critical identifying characteristic of a "cause of action" since "causes of action" are brought to remedy civil wrongs which are threatened or committed. Oklahoma's extant jurisprudence specifically holds that a condemnation proceeding "is a special proceeding and not a civil action. [Authorities omitted] Condemnation proceedings do not involve a tort and are not civil actions at law or suits in equity. Because a condemnation proceeding is a special statutory proceeding brought to determine just compensation for a public taking and is not a "cause of action" instituted to remedy a wrong, a legislatively-effected stay of such proceedings would neither implicate nor violate art. V, § 52's cireumseription of legislative power to take away a cause of action-regardless of when the condemnation was instituted. The retroactive moratorium reflected in the terms of § 21-222 is an effective exercise of legislative power which is not constitutionally infirm.

CERTIFIED QUESTION ANSWERED.

19 HARGRAVE, C.J., HODGES, LAVENDER, BOUDREAU and WINCHESTER, JJ., concur.

T 10 WATT, V.C.J., OPALA, KAUGER and SUMMERS, JJ., dissent.

OPALA, J.,

with whom WATT, V.C.J., KAUGER and SUMMERS, JJ., join, dissenting.

¶ 1 The court holds today that a municipal condemnor's right of eminent domain (to compel the sale of an electrical-generation system) is enforceable by a "special statutory proceeding" whose prosecution does not qualify as rested upon a "cause of action." Only the latter stands protected by the provisions of Art. V § 52, Ok. Const., from retrospective legislative tampering. I cannot accede to this view. The Constitution's § 52 shield protects from retrospective repeal all those claims for which the courts are authorized to afford vindication by the law in force at a judicial proceeding's commencement. The instant condemnation case is hence included under the § 52 umbrella.

¶ 2 The phrase "cause of action" became a legal term of art that was to serve as a synonym and substitute for one's "right to a writ" under any form of action -the legal parlance in use before the English pleading system came to be scuttled in the mid-nineteenth century on both sides of the Atlantic Ocean. Because the substantive legal meaning of this troublesome phrase soon came to be enveloped in controversy, the authors of the Federal Rules of Civil Procedure (who began their work in the first third of the twentieth century) discontinued its use in favor of the new term "claim." Despite its multi-meaning facets, the phrase survived in legal parlance to signify an "alleged invasion of 'recognized legal rights' upon which a litigant bases his claim for relief" Although scholarly analysis may still be discordant on many aspects, cases now appear to agree on the concept's core meaning which regards failure to state a cause of action as indicating a pleader's missed effort to show the invasion of legal rights.

13 Generally speaking, a cause of action came to denote that demand for which one is entitled to redress in a judicial proceeding. The conceptual antonym of "cause of action" is not "special proceeding," but non-actionable detriment (damnum absque iniuria). The concept's analogue is the full range of judicially redressable disputes. A condemnee's refusal to sell is actionable harm to the condemnor which becomes remediable by suit predicated on a condemnor's cause of action (against the con-demnee). Today's opinion incorrectly turns condemnation into a class of demands for which the law gives no redress, a patently wrong conclusion drawn from a flawed analysis. It ignores the undeniable legal verity that a condemnee's refusal to sell is the condemnor's redressable detriment for which the law affords judicial relief.

4 Special proceedings no longer form a separate litigation class in Oklahoma. The dichotomy of actions and special proceedings stands abolished by the 1984 Pleading Code. In pre-1984 days, the distinction between a special proceeding and an action lay solely in how the courts were required to process certain extra-code procedural tracks. The adjective law of the state still confines its general pleading code to mainstream actions. It recognizes the existence of several separate procedural tracks reserved for application to proceedings that differ from mainstream actions." "Special proceedings" is a term by which we continue to distinguish that litigation which is not governed by the general regime of pleadings. Both "actions" and "special proceedings" must present for adjudication a redressable right" one that is fit for judicial vindication. Condemnation is a suit to vindicate one's right to exercise the power of eminent domain. Its distinctiveness from other actions in the mainstream lies solely in matters of pleading, practice and procedure prescribed by law for the affordable redress, rather than in a categorical division for separation of redressable rights from nonactionable detriment.

¶ 5 A judicially pressed exercise of eminent domain power clearly presents a controversy over a juristic right. The demand hence constitutes a cause of action whose vindication is affordable in the courts. The genre of procedural regime that must govern a matter in litigation is utterly immaterial in applying the Constitution's § 52 restriction on legislative interference with a pending cause of action. Because this condemnation case was filed before the ban's enactment into a statute,it stands unaffected by the legislature's later suspension of the city's right to exercise its eminent domain power. Inasmuch as I agree with the Eastern Dis-triet's [the United States District Court for the Eastern District of Oklahoma] refusal to dismiss the instant claim, I would state in answer to the question posed by the certifying court [the United States Court of Appeals for the Tenth Circuit] that Oklahoma's § 52 protection is invocable to save this litigation from the after-enacted statutory ban on some municipal acquisitions by condemnation.

Summary of Dissent

¶ 6 Claims governed by an extra-code regime of procedure are not necessarily excluded from the class of those prosecuted upon a "cause of action." Neither jurisprudence nor scholarly literature that followed the abolition of the writ system will support a pronouncement that the term "cause of action" was intended to be reserved for code-regulated litigation. Condemnation claims are prosecuted upon a cause of action for acquisition of property by exercise of eminent domain power.

¶ 7 The court's pronouncement raises for the Field Code a claim that cannot be sustained-that of imparting cause-of-action attributes exclusively to those judicial proceedings in which its norms of procedure govern. The Field Code confers no substantive rights" It is, in its entirety, an adjective-law enactment. "The cause of action is based on the substantive law of legal liability .." What is worse, today's conclusion, which rests on no known or identifiable authority, is enveloped in thick clouds of doubtful historicity.

      . Lake Region is a rural electric-power distribution cooperative which provides electricity to its members in a northeast Oklahoma seven-county area. The Rural Electric Administration [REA or now called the Rural Utilities Service] financed and holds a secured interest in Lake Region's facilities pursuant to its mortgage agreements in the condemned property (among others).

      . City alleges that it made known since 1994 its intention to condemn Lake Region's electrical facilities and service rights within City's corporate limits.

      . The pertinent provisions of 18 O.S.1991 § 437.2 are:
      A cooperative shall have the power:
      (k) To ... maintain and operate electric transmission and distribution lines ...;provided further that if such city, town or village in which an area has been or shall be included, as aforesaid, owns and operates a system for furnishing of electric energy to its inhabitants, the cooperative furnishing electric energy in such area shall transfer to such city, town or village, upon its request, the cooperative's electric distribution facilities used in furnishing electric energy in said area ..., subject, however, to the following requirement: The city, town or village shall pay to the cooperative an amount to compensate the cooperative for the fair value of the cooperative's facilities to be acquired by the city, town or village. If such cooperative and city, town or village cannot agree upon the amount to be paid to the cooperative, the city, town or village is authorized to file a proceeding in the district court of the county in which such city, town or village, or any part thereof, is located for the acquisition of the cooperative's electric distribution facilities used in furnishing electric energy in said area.... [Emphasis added.]

      . Oxta.Const. art. V, sec. 52 provides:
      The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit. [Emphasis added.]

      . Brown v. Ford, 1995 OK 101, 905 P.2d 223, 226.

      . Graham v. City of Duncan, 1960 OK 149, 354 P.2d 458, 462.

      . Harn v. State ex rel. Williamson, Atty. Gen., 1939 OK 40, 184 Okla. 306, 87 P.2d 127.

      . Oklahoma City v. Local Federal Savings & Loan Ass'n of Oklahoma City, 1943 OK 42, 192 Okla. 188, 134 P.2d 565, 575; Harn, supra note 7 at 127.

      . For the pertinent terms of 18 O.S.1991 § 437.2, see supra note 2.

      . Howard v. Brown, 1935 OK 357, 44 P.2d 959, 962.

      . Stone v. Case, 1912 OK 428, 34 Okla. 5, 124 P. 960, 965.

      . Graham, supra note 6 at 461; see also In re Block I, Donly Heights Addition, Oklahoma City, 1944 OK 213, 194 Okla. 221, 149 P.2d 265, 268, where the Court recognized another specie of special proceeding which lies without the purview of Oxta Const. art V, § 52's provisions.

       The text of Art. V § 52, OKl. Const., is:
      ''The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has commenced on any cause of action, the Legislature shall have no power to take away such cause of action or destroy any existing defense to such suit." (Emphasis supplied.)
      The legislative act that suspends the municipal exercise of eminent domain power to acquire certain electrification plants is found in 11 O.S. Supp.1998 § 21-222, whose text is:
      ''There is hereby declared a moratorium on all municipal condemnation proceedings instituted pursuant to Section 437.2 of Title 18 of the Oklahoma Statutes, initiated prior to July 1, 2002. The moratorium shall also apply to all municipalities or public trusts thereof which attempt to condemn the facilities of electric public utilities or rural electric cooperatives for the purpose of utilizing such facilities for the delivery of electric power and energy. If full consumer choice in the supply of electric power and energy is implemented in this state on or before July 1, 2002, the municipal condemnation provisions authorizing municipalities with electric utilities to condemn the facilities or rural electric cooperatives contained in Section 437.2 of Title 18 of the Oklahoma Statutes ... [are] hereby repealed. If retail consumer choice is not implemented in this state on or before July 1, 2002, this moratorium shall become null and void. The moratorium provided herein shall have prospective and retroactive application."
      After-enacted legislation replaces the above statute on which the certified question is based. The changes have no impact on this court's answer to the posed question. The new text eliminates the calendar-based time limit for municipal condemnation by providing that the ban shall remain in effect until the enactment of certain enabling legislation (affording consumers a choice among retail electric energy suppliers). The terms of 11 0.S. Supp.2001 § 21-222, the after-enacted amendment, provide:
      "There is hereby declared a moratorium on all municipal condemnation proceedings instituted pursuant to Section 437.2 of Title 18 of the Oklahoma Statutes, initiated prior to the enactment of electric restructuring enabling legislation and the implementation of consumer choice of retail electric energy suppliers. The moratorium shall also apply to all municipalities or public trusts thereof which attempt to condemn the facilities of electric public utilities or rural electric cooperatives for the purpose of utilizing such facilities for the delivery of electric power and energy. The moratorium shall remain in effect until the enactment of electric restructuring enabling legislation and implementation of consumer choice of retail electric energy suppliers. Upon such enactment of electric restructuring enabling legislation and implementation of consumer choice of retail electric energy suppliers, the municipal condemnation provisions authorizing municipalities with electric utilities to condemn the facilities of rural electric cooperatives contained in Section 437.2 of Title 18 of the Oklahoma Statutes ... [are] hereby repealed. The moratorium provided for herein shall have prospective and retroactive application."

      . This condemnation suit was filed in the District Court in Cherokee County, Oklahoma, on 18 May 1998. It was removed to the United States District Court for the Eastern District of Oklahoma on 19 June 1998. The statutory ban on acquisitions by eminent domain in contest here bears the effective date of 10 June 1998. The United States District Court for the Eastern District of Oklahoma denied the electric cooperative's motion to dismiss the case. It held that the municipality's quest to condemn presses a cause of action that was brought before the § 21-222 ban became effective. The case was allowed to proceed as one that stands protected by the § 52 shield.

      . Koffler and Reppy, Hanpsoox or Common Law Preapinc 59, West Publishing Co. (1969).

      . The reform that transformed the writ system into code pleadings was intended to advance the notion that cases should turn on their substantive merits rather than on the technical and tactical skill of the lawyer. Sommer v. Sommer, 1997 OK 123, ¶ 7, 947 P.2d 512, 521 (Opala, J., dissenting) (citing Jack H. Friedenthal, Mary Kay Kane, Arthur R. Miller, Civ Proceours 238-39 (2d ed.1993)).

      . The Field Code [the 1848 compilation first adopted in New York] required a litigant to allege "a plain and concise statement of the facts constituting each cause of action (defense and counterclaim) without unnecessary repetition." N.Y. Law 1851 c. 479 § 1. This facially simple formula came to have varied meanings in different contexts. See Sommer, supra note 4 at ¶7, at 521 n. 7 (citing David Mellinkoff, THe Lanauace or THE Law 17 (1963)) (quoting Buack's Law Dictionary 279 (4th ed.1951)). Two theories came to be accepted for testing the "cause of action." The "primary right" theory, advanced by Professor Pomeroy, relates to the nature of the injury alleged to have been suffered. The "aggregate of operative facts" doctrine, first proposed by Professor (later Judge) Clark, focuses solely on the events that give rise to a claim (or claims) for relief. See Sommer, supra note 4 at 17, at 521 n. 7 (citing Friendenthal, supra note 4). The term came to be so "encrusted with doctrinal complexity" that the drafters of the Federal Rules of Civil Procedure saw fit to eliminate it altogether. Davis v. Passman, 442 U.S. 228, 237, 99 S.Ct. 2264, 2273, 60 L.Ed.2d 846 (1979), Elliott v. Mosgrove et al., 162 Or. 507, 93 P.2d 1070, 1072-74 (1939). By substituting the word "claim" for the phrase "cause of action" the authors hoped to eliminate the conflicting notions about the code's meaning for the term. Blume, The Scope of a Civil Action, 42 Mice. L.Rev. 257, 261 (1943) (citing 1 Moore, Federal Practice 145 (1938)). For a more detailed discussion of the controversy that surrounded the "cause of action," see Davis, 442 U.S. at 238, 99 S.Ct. at 2273 n. 15 (citing 2 J. Moore, Federal Practice 12.06, p. 259 n. 26 (2d ed.1978)); J Pomeroy, Code Remedies 459-466 (4th ed.1904); Wheaton, The Code "Cause of Action": Its Definition, 22 Cornet Lo. 1 (1936); Clark, The Code Cause of Action, 33 Yare 13. 817, 820 (1924).

      . Robert Millar, Civic Procepure or tHe Triar Court m Historicar Perspective 61, New York University Press (1952); Mitchell, Ter Feperar Rutes or CiviL ProcepurE 75 et seq. in David Dudley Field, Can-TENARY Essays, New York University Law School (1949).

      . In lieu of the term "cause of action," the Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Davis, supra note 5 at 422 U.S. at 238, 99 S.Ct. at 2273 n. 15 (citing Fep.R. Civ. P. 8(a)).

      . Sommer, supra note 4 at ¶ 7, at 521 n. 7 (citing Davis, 442 U.S. at 237-38, 99 S.Ct. at 2273 citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693, 69 S.Ct. 1457, 1463, 93 L.Ed. 1628 (1949)); Koffler & Reppy, supra note 3 at 59.

      . "[A] situation of state of facts that entitles a party to maintain an action in a judicial tribunal" is a cause of action. Bryant, the law of pleading under the codes of civil procedure 168-169, Little, Brown and Company (1894); Koffler & Reppy, supra note 3 at 25.

      . "Actionable detriment" is addressed in Schaff v. Rose, 1925 OK 292, ¶¶ 3-5, 111 Okla. 237, 239 P. 458, 459; Chicago, Rock Island & Pacific Railway v. Beatty, 1914 OK 341, 42 Okla. 528, 141 P. 442, 443; Midland Valley R. Co. v. Larson, 1914 OK 41, 41 Okla. 360, 138 P. 173, 175.

      . The Latin phrase means harm for which the law provides no redress. Brack's Law Dictronary 398 (7th ed.1999).

      . A "cause of action" is generally a union of the plaintiff's right with the defendant's infringement. Magnolia Petroleum Co. v. Norvell, 1952 OK 20, ¶ 6, 240 P.2d 80, 81-82. Koffler & Reppy, supra note 3 at 85.

      . Watkins v. Board of Com'rs, 1918 OK 445, 70 Okla, 305, 174 P. 523, 524-25; Koch et al. v. Oklahoma Turnpike Authority, 1953 OK 148, ¶ 18, 208 Okla. 556, 257 P.2d 790, 794; Public Service Co. v. B. Willis, C.P.A., 1997 OK 78, ¶ 11, 941 P.2d 995, 999.

      . The terms of 12 0.S.1981 §§ 3-6, by which special proceedings were recognized as a class separate from actions, were repealed in 1984. The now-repealed text provided:

        § 3. Division of remedies
      "Remedies in the courts of justice are divided into: First, actions. Second, Special proceedings."
      § 4. Action defined
      "An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense."
      § 5. Special proceedings
      ''Every other remedy is a special proceeding."
      § 6. Kinds of action
      "Actions are of two kinds: First, Civil. ond, Criminal." Sec-

      . It is the substantive-law essence of an action or proceeding-not its procedural attributes-that gives a quest for relief its characteristic as a cause of action. The pertinent provisions of 12 0.S.1991 § 2001 are:
      ''The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure." * * * (Emphasis supplied.)
      The terms of 12 0.$.1991 § 2002 provide:
      There shall be one form of action to be known as "civil action". (Emphasis supplied.)

      . For the text of 12 0.$.1991 § 2001-2002 see supra note 15.

      . Condemnation, like probate, adoption or juvenile cases, is a special proceeding because it is not entirely governed by the 1984 Pleading Code. Wilson v. Kane, 1993 OK 65, ¶ 6, 852 P.2d 717, 721; Board of Law Library Trustees v. State, 1991 OK 122, ¶ 5n.11, 825 P.2d 1285, 1288.

      . The term "right is generic, common, embracing whatever may be lawfully claimed." Wesley Newcomb Hohfeld, Funmpamentae Lecar Concrr-trons 35-36 (Walter Wheeler Cook ed., 1964) (citing Lonas v. State, 50 Tenn. 287, 3 Heisk. (Tenn.), 287, 306-307 (1871)).

      . "The cause of action is based on the substantive law of legal lability ...". Landry v. Acme Flour Mills Co., 1949 OK 170, ¶ 17, 202 Okla. 170, 211 P.2d 512, 515 (quoting Elliott v. Chicago, M. & St. P. Ry. Co., 35 S.D. 57, 150 N.W. 777, 779).

      . 'The cause of action is the thing done or omitted to be done, which confers the right to sue; that is, the wrong against the plaintiff, which caused a grievance for which the law gives a remedy." Greene v. L. Fish Furniture Co., 272 Ill. 148, 156, 111 N.E. 725; Shipman, Handbook or Common-Law Preading 196 (3rd ed.1923).

      . Although the legislature may abolish a cause of action, it is powerless to do so retrospectively. First Nat. Bank of Pauls Valley v. Crudup, 1982 OK 132, ¶ 8, 656 P.2d 914, 916-17. For the terms of Art. V § 52, OK. Const., see supra note 1.

      . See supra note 2.

      . Atkinson, Coptrication or PromarE Law 177 et seq. in David Dudley Field. Centenary Essays, New York University School of Law (1949).

      . The meaning to be ascribed to the phrase here in contest within the context of § 52 must be informed by the concept's application and use in the practice under the Field Code during the first decade of the twentieth century, the period when the Oklahoma Constitution was drafted, proposed and adopted. The dissent's analysis is consistent with the teachings of that compilation's impact and understanding by contemporary scholarly, professional and judicial literature, national as well as Oklahoma's own. James Willard Hurst, Txs or American Law 90-92, Little, Brown and Company (1950); Lawrence M. Friedman, A History or American Law 340-347, Simon & Schuster (1973).

      . Weems v. Melton, 47 Okl. 706, 150 P. 720, 722.

      . Landry v. Acme Flour Mills Co., supra note 19 at ¶ 17 at 515.


author: GOLDEN, Justice.

text:
    2002 WY 84
    Irene Aaker APPLEBY, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
    No. 00-273.
    Supreme Court of Wyoming.
    June 5, 2002.

      David A. Drell of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming, Representing Appellant.
    Gay Woodhouse, 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.
    Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ.
   GOLDEN, Justice.

[¶ 1] Appellant Irene Aaker Appleby (Ap-pleby) challenges a decision by the Appellee Department of Employment Workers' Safety and Compensation Division's (Division) Internal Hearing Unit (IHU) that she did not file a timely request for hearing from the Division's final determination denying benefits. Before the IHU, Appleby contended that the Division was equitably estopped from denying her a contested case hearing for failure to timely file, and the hearing examiner for the IHU initially agreed with that contention and recommended a contested case hearing. The Division objected to that recommendation, and the matter was referred to the Interim Director of the Department of Employment (Director) who concluded that equitable estoppel did not apply, and denied Ap-pleby a contested case hearing.

[¶ 2] We reverse and remand for a contested case hearing before the appropriate hearing authority, either the Office of Administrative Hearings or the Medical Commission, in accordance with Wyo. Stat. Ann. § 27-14-601(kK)(v).

ISSUES

[¶ 3] Appleby presents these issues for our review:

1. Whether the Final Agéncy Order issued by the Interim Director of the Department of Employment, State of Wyoming rejecting the Hearing Officer's Report and Recommended Findings of Fact, Conclusions of Law, and Order dated December 14, 1999 was arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law. 2. Whether the July 19, 2000 Order Affirming Agency Decision of the Seventh Judicial District was arbitrary, capricious, and an abuse of discretion and otherwise not in accordance with law.

The Division rephrases the issues:

I. Does equitable estoppel excuse Appellant's failure to file a timely objection to the Division's final Determination?
II. Did Appellant establish all the elements of her claim for equitable estoppel?

FACTS

[¶ 4] Appleby has been a checker for Safeway for twenty-five years. While performing those duties, Appleby began to experience aching wrists and arms and sought medical attention. She was treated conservatively and continued to work. In April of 1999, her doctors informed her that she would need surgery and would miss twelve to fourteen weeks of work. Her medical insurer informed her that worker's compensation benefits were available, and Appleby filed an injury report. In the small box on the report form that asked for date of injury, Appleby wrote October 26, 1998. In the small box asking time of injury and time of shift, Ap-pleby wrote "n/a."

[¶ 5] On April 20, 1999, the Division issued its final determination letter informing her it had denied benefits for these reasons:

Your claim for benefits was not filed within the statute of limitations pursuant to Wyoming Statute 27-14-508(a).
The burden of proof in contested cases involving injuries which occur over a substantial period of time is on the employee to prove by competent medical authority that his/her claim arose out of and in the course of his/her employment and to prove by a preponderance of evidence that:
a. -There is a direct causal connection between the condition or cireumstances under which the work is performed and the injury.
b. The injury can be seen to have followed as a natural incident of the work as a result of the employment.
c. The injury can fairly be traced to the employment as a proximate cause.
d. The injury does not come from a hazard to which employees would have been equally exposed outside of the employment.
e. The injury is incidental to the character of the business and not independent of the relation of employer and employee. (Wyoming Statute 27-14-603(a)).
Definition of injury does not include: Any injury resulting primarily from the natural aging process or from the normal activities of day-to-day living, as established by medical evidence supported by objective findings. (Wyoming Statute 27-14-102(a)(xi)(G)).
The burden is on the claimant to prove each essential element of his or her claim by a preponderance of the evidence.
Either the injured worker or the employer may object to this determination and request a hearing. Affected parties have a right to a hearing before a hearing examiner as provided by the Wyoming Workers' Compensation Act and to legal representation. We must receive a written request, stating your reason(s) for objecting on or before 5-14-99. If a timely written request for hearing is not filed with this division, the final determination by the Division pursuant to W.S. 27-14-601(k) shall not be subject to further administrative or judicial review.
If there are any questions, please contact me at (807)777-5677.

The letter was signed by the claims analyst. Appleby had not filed a claim before, and, before the May 14, 1999, deadline passed, Appleby's husband called the claims analyst and asked why benefits had been denied. According to Mr. Appleby, the claims analyst explained that October 26, 1998, was a significant date, and while the final determination could be appealed, it would be useless because the October 26, 1998, date meant that it was filed too late to be approved. The claims analyst testified that he did recall speaking with Mr. Appleby on one occasion, but did not specifically recall this conversation. He guessed that he would have explained the need for an appeal. During examination at the hearing, the claims analyst admitted that he handles several hundred cases at any given time and spends a great deal of time on the phone answering questions similar to those posed here. He stated that he would have explained to Appleby that the Division's rationale for denying benefits here was essentially that her injury report was untimely, and her injury was a preexisting condition.

[¶ 6] On September 8, 1999, the Division received Appleby's written request for a hearing. The Division sent her notice that she was no longer entitled to a hearing because her response was late; however, she could object to the finding that her response was late and request a hearing only on that particular determination. Appleby did request a hearing, and the matter was set before the IHU.

[¶ 7] The IHU's hearing examiner heard evidence from both Appleby and the claims analyst concerning statements made during the telephone conversation. Appleby testified that the claims analyst informed her agent that it would be fruitless to request a hearing because her injury report was untimely. Based on this conversation, Appleby did not request a hearing by the deadline. After the deadline had passed, Appleby consulted an attorney who requested a hearing on the final determination's denial of benefits The hearing examiner concluded that the claims analyst's misleading statement regarding the futility of Appleby's objection to the final determination, although unintentional, was sufficient to constitute estoppel and prevent the Division from invoking untimeliness as the basis for denying a hearing. The hearing examiner cited Bauer v. Workers' Compensation Div., 695 P2d 1048, 1053 (Wyo.1985), as authority for this conclusion.

[¶ 8] The Director reversed and issued a final order that made eredibility determinations and concluded that equitable estoppel principles did not apply to the particular facts of the case. ' The Director ruled that Appleby's request for a contested case hearing on the final determination must be denied as untimely. On review by the district court, that court determined that by statutory amendment an equitable estoppel defense was no longer available to a claimant, and the district court affirmed the Director's final order. This appeal followed.

DISCUSSION

Standard of Review

[¶ 9] 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 ageney. Houton v. State ex rel. Wyo. Worker Comp. Div., 899 P.2d 869, 870 (Wyo.1995). Although W.R.A.P. 12.09 generally confines review to the issues set forth in the petition and raised before the agency, jurisdictional issues may be considered at any time. Wyo. Workers' Comp. Div. v. Summers, 987 P.2d 153, 156 (Wyo.1999).

The interpretation and correct application of the provisions of the Wyoming Workers' Compensation Act is a question of law over which our review authority is plenary. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law.

Wright v. State ex rel. Wyoming Worker Safety and Compensation Div., 952 P.2d 209, 211 (Wyo.1998) (citations omitted).

[¶ 10] Our well-established rules of statutory interpretation were recently summarized to be:

We decide initially whether the statute is clear or ambiguous. This Court makes that determination as a matter of law. If we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute. In effectuating the plain language of the statute, we begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia. If, on the other hand, we determine that the statute is ambiguous, we resort to general principles of statutory construction to determine the legislature's intent.

Wyo. Dept. of Transportation v. Haglund, 982 P.2d 699, 701 (Wyo.1999) (citations and quotations omitted).

Wyo. Stat. Ann. § 27-14-601(k)

[¶ 11] Any interested party may request a hearing before a hearing examiner on the final determination of the Division by filing a written request for hearing with the Division within fifteen days after the date the notice of the final determination was mailed by the Division. Wyo. Stat. Ann. § 27-14-601(k)(iv) (LexisNexis 2001). -If timely written request for hearing is not filed, the final determination is not subject to further administrative or judicial review. Wyo. Stat. Ann. § 27-14-601(k)(vi) (LexisNexis 2001). That does not mean, however, that the Division's determination on the timeliness of a request for hearing is not reviewable. Sheneman v. Div. of Workers' Safety and Comp., 956 P.2d 344, 351 (Wyo.1998). Indeed, Sheneman went on to review such a timeliness decision.

[¶ 12] The term "final determination" has a specialized meaning under subsection 601(k), which states:

(k) Determinations by the division pursuant to this section and W.S. 27-14-605 shall be in accordance with the following:
(i) The initial review of entitlement to benefits pursuant to subsections (a) and (e) of this section shall be made by the division within fifteen (15) days after the date the injury report or claim is filed. Following initial review, the division shall issue a final determination or if a final determination cannot be made based upon available information at that time, the division may issue a request for additional information as necessary;
(1) Following issuance of a request for additional information under paragraph (k)) of this section, the division shall investigate the matter and issue its final determination within forty-five (45) days after issuing the request;
(iii) Notice of a final determination issued by the division under this subsection shall include a statement of reasons and notice of the right to a hearing;
(iv) Any interested party may request a hearing before a hearing examiner on the final determination of the division by filing a written request for hearing with the division within fifteen (15) days after the date the notice of the final determination was mailed by the division. If the division has not rendered a final determination within sixty (60) days following the date the claim was filed, any interested party may request a hearing before a hearing examiner in the manner prescribed by this paragraph. If the written request for hearing is sent to the division by certified or registered mail, postage prepaid, return receipt requested, proof of such mailing within the time provided by this subsection with a receipt signed by an agent of the state of Wyoming shall be presumed to be timely filing of the request with the division;
(v) Upon receipt of a request for hearing, the division shall immediately provide notice of the request to the appropriate hearing authority as determined pursuant to W.S. 27-14-616[.]

Wyo. Stat. Ann. § 27-14-601(k) (LexisNexis 2001).

[¶ 13] Following the Division's initial review of entitlement to benefits, this section directs that the Division must issue a "final determination" that includes a statement of reasons and notice of the right to hearing. Thus, we see that the term "final determination" is not used generally, but, under this statutory section, refers specifically to the written letter stating the Division's decision about a claimant's entitlement to benefits, its statement of reasons, and its notice of hearing. Because "final determination" is a term for the Division's written letter responding to a claim, its use in subsection 601(k)(vi) does not preclude review of the Division's decision that a request is timely. Should that review affirm the untimeliness decision, however, the "final determination," meaning the written letter stating the reasons why the claimant is not entitled to benefits and a notice of hearing, is not subject to further review.

IHU Jurisdiction

[¶ 14] The novel question in Shereman was whether the Division had authority to establish the IHU to determine the correctness of the Division's decision that claimant's request for a hearing is untimely. Sheneman, 956 P.2d at 351. The IHU is a creature of Division rules, specifically, Chapter 1, Sections 4, 5, and 6. Id. at 850; Dep't of Employment, Wyoming Workers' Safety and Compensation Div., Rules and Regulations (Oct.1999). In Sheneman, a final determination was issued to Sheneman denying benefits for a coronary condition because he had failed to provide proper documentation of his condition. Id. at 346-47. The final determination provided a date by which Scheneman had to object and request a hearing. Several days after that deadline had passed, Schene-man's request for hearing was received by the Division, and the Division issued a notice of late response. From his objection to that notice of late response, the Division granted Scheneman a hearing before its IHU. Id. at 347. The IHU hearing officer made recommended findings of facts and conclusions of law that determined the Division had properly advised Scheneman of all deadlines and had properly computed those deadlines. Based on these conclusions, Scheneman's request for hearing was ruled untimely, and the final determination was not subject to further administrative or judicial review. Id. at 347-48.

[¶ 15] On appeal, we determined that, where the statute prohibited review of a final determination before either the OAH or the Medical Commission when the request for hearing was untimely, the Division did have statutory authority to promulgate rules and regulations creating the IHU to review processing decisions that a request for hearing was untimely. Id. at 349-50. In Sheneman, the IHU's jurisdiction over the procedural aspect of processing a claim was distinguished from a claimant's substantive right to a contested case hearing before the OAH or the Medical Commission that is fixed at the time of injury. Id. at 351. Although the statute terminated Scheneman's substantive right to a contested case hearing on the denial of benefits, we held that IHU's jurisdiction over the preliminary processing issue did not adversely affect his rights. Id. at 351. This Court then went on to review whether substantial evidence supported the IHU's decision that Scheneman's request for hearing was untimely. Id. Thus, Sheneman is clear, the IHU has jurisdiction over the procedural matter of whether a request for hearing was untimely.

[¶ 16] Sheneman addressed the issue of what process is due when a claimant contends that the Division has wrongly determined that a request for hearing was untimely. The Workers' Compensation Act (Act) and the Wyoming Administrative Procedure Act (WAPA) require that no determination or award be final without notice, an opportunity for hearing and judicial review. Wyo. Stat, Ann. § 27-14-606 (LexisNexis 2001); Wyo. Stat. Aun. § 16-8-114 (Lexis-Nexis 2001); Wyo. Stat. Ann. § 16-3-101(b)(ii) (LexisNexis 2001). Our jurisprudence requires that

[bloth general due process considerations of fairness and specific statutory restrictions directly limit the manner in which an agency may exercise its designated responsibilities. Additional restrictions are imposed by the often stated principle that an agency enjoys only those powers which the legislature has expressly conferred and the corollary rule of construction that statutes under which an agency purports to exercise a doubtful power must be strictly construed against the exercise of that power.

Jackson v. State ex rel. Wyoming Workers' Compensation Div., 786 P.2d 874, 878 (Wyo.1990) (citations omitted).

[¶ 17] Sheneman recognized the IHU jurisdiction over the specific facts in that case. It made no determination that the IHU had jurisdiction beyond determining whether the Division had properly advised of and computed deadlines before rejecting as untimely a request for a contested case hearing on a final determination denying benefits. The issue before us is, therefore, whether, considering all statutory and due process requirements, the IHU has subject matter jurisdiction over the issue of equitable estop-pel.

[¶ 18] Subject matter jurisdiction is an issue that this Court may raise upon its own motion. Summers, 987 P.2d at 156. In this case, Appleby conceded that her request for hearing was untimely, but contended that the Division was equitably estopped from denying her a contested case hearing on the final determination. Equitable estoppel is a tort doctrine that requires proof of misrepresentation. B & W Glass v. Weather Shield Mfg., 829 P.2d 809, 818 (Wyo.1992). Generally, the doctrine is considered a rule of substantive law. Blais v. Allied Exterminating Co., 198 W.Va. 674, 482 S.E.2d 659, 662 (1996) (collecting cases). This Court has repeatedly applied equitable estoppel in the workers' compensation benefits context, and subject matter jurisdiction does exist for its determination by a contested case hearing. Bauer, 695 P.2d at 1050-53; Wyo. Workers' Comp. Div. v. Barker, 978 P.2d 1156, 1160-61 (Wyo.1999); Wyo. Worker's Comp. v. Rivera, 796 P.2d 447, 450-51 (Wyo.1990). Sheneman recognized the IHU's jurisdiction to insure claims processing; however, that recognition does not extend to determining issues involving rules of substantive law such as equitable estoppel, which the Act. requires to be heard by contested case proceeding. See Wyo. Stat. Ann. § 16-8-101(b)(@) (LexisNexis 2001) (defining "contested case" as a proceeding in which legal rights are required by law to be determined by an agency after an opportunity for hearing). The IHU does not have subject matter jurisdiction to determine rights under the substantive legal doctrine of equitable estoppel.

Equitable Estoppel

[¶ 19] Having decided that IHU jurisdiction does not extend to equitable es-toppel, the developed record on this issue does permit us to examine whether, as a matter of law, those legal principles would apply to the facts in this case. We have recognized that estoppel is available against a governmental ageney for the unintentional, misleading statement of its representative. Barker, 978 P.2d at 1159-61; Bauer, 695 P.2d at 1050-53. Equitable estoppel may be invoked to prevent strict application of both the workers' compensation statute of limitations and its accident report requirement. Id. at 1053. If a valid claim is lost because of some action by the employer or the insurarice provider (here the state of Wyoming) reasonably relied upon by the employee to her detriment, relief should be granted. Id. at 1052.

[¶ 20] Bauer and Barker both applied equitable estoppel after the employer provided erroneous information that coverage was not available. In another case, equitable estop-pel applied because the Division erroneously informed a court clerk calling on behalf of a claimant's wife that coverage was not available. Rivera, 796 P.2d at 450. In this case, Appleby had written notice that a hearing was available to her upon written request stating her reasons for objecting to the denial of benefits. The question thus arises whether, as a matter of law, a claimant's reliance upon verbal representations rather than the written notice can ever be reasonable.

[¶ 21] In this case, we find Ap-pleby's reliance reasonable because the final determination erroneously applied two statutes and because its provided reasons, stated in the most technical fashion, encouraged the claimant to seek a telephone explanation. Wyo. Stat. Aun. § 27-14-601(J) (LexisNexis 2001) states (emphasis added):

Notice to any employee or his dependents urider this section of a final determination by the division denying the com-pensability of an initial injury, a claim for medical or hospital care for which the employee or his dependents may be liable for payment or denying any impairment, disability or death benefit, shall include reasons for denial and a statement of the employee's or his dependents' rights to a hearing before a hearing examiner as provided by this act and to legal representation.

[¶ 22] Arguably, the final determination's statutory quotations satisfy the legislature's intent and can be classified as "reasons for denial;" however, to then require that the claimant state her reasons for disagreeing with them goes beyond the strictures of subsection 601(k). The final determination's requirement that Appleby provide a reason for objecting is not authorized by statute. The relevant subsection states in pertinent part:

(iv) Any interested party may request a hearing before a hearing examiner on the final determination of the division by filing a written request for hearing with the division within fifteen (15) days after the date the notice of the final determination was mailed by the division.

Wyo. Stat. Ann. § 27-14-601(K)(iv) (Lexis-Nexis 2001). Plainly, this section does not require that a claimant state reasons for objecting in order to secure the hearing. Similar language is used in subsections 601(J) and 601(K)(vi). The Division is without authority to require a claimant to provide a reason for objecting to the determination in a written request for hearing.

[¶ 23] But having done so in this case, it must have been expected that a claimant would call the listed telephone number and seek an understandable explanation. Indeed, the claims analyst testified that he spent a great amount of time responding to these types of telephone inquiries. Here, Appleby testified that she did not understand her final determination and naturally her representative called the phone number listed and was informed that the final determination was telling her that she had not filed on time and she had a pre-existing condition. At that point, it was reasonable for Appleby to believe that she did not have any reason for objecting to the denial of benefits, which would permit her to request a hearing.

[¶ 24] We found one other error in applying a statute in the final determination, and mention it because it shows that Appleby's request for hearing would not have been "futile" as she was advised by the claims analyst. The final determination stated that "[ylour claim for benefits was not filed within the statute of limitations pursuant to Wyoming 'Statute 27-14-508(a). Subsection 503(a) states: no s

A payment for benefits involving an injury which is the result of a single brief occurrence rather than occurring over a substantial period of time shall not be made unless in addition to the proper and timely filing of the injury reports, an application or claim for benefits is filed within one (1) year after the date the injury occurred or for injuries not readily apparent, within one (1) year after discovery of the injury by the employee. The injury report is not a claim for benefits.

Wyo. Stat. Ann. § 27-14-508(a) (LexisNexis 2001) (emphasis added). The final determination made this statement based on information in the injury report that Appleby completed. In that injury report, Appleby stated that her date of injury was October 26, 1998.. Her claim for benefits was filed on April 12, 1999, less than a year later. We see no reasonable basis for the Division's final determination to have stated this as a reason for denial of benefits, and no reasonable basis for the claims analyst to have relied upon it either when he wrote the letter of final determination to Appleby, or when he explained the timing problem over the telephone to Appleby's representative.

[¶ 25] Based on this analysis, it would appear that the Division is estopped from asserting as a defense that Appleby's request for hearing is denied. The Division contends, however, that, by statutory amendment, equitable estoppel is a common law defense that is no longer applicable to workers' compensation cases. In 1994, the legislature amended Wyo. Stat. Aun. § 27-14-101 by adding subsection (b), which provides:

(b) It is the intent of the legislature in creating the Wyoming worker's compensation division that the laws administered by it to provide a worker's benefit system be interpreted to assure the quick and efficient delivery of inderonity and medical benefits to injured and disabled workers at a reasonable cost to the employers who are subject to the Worker's Compensation Act. It is the specific intent of the legislature that benefit claims cases be decided on their merits and that the common law rule of "liberal construction" based on the supposed "remedial" basis of workers' benefits legislation shall not apply in these cases. The worker's benefit system in Wyoming is based on a mutual renunciation of common law rights and defenses by employers and employees alike. Accordingly, the legislature declares that the Worker's Compensation Act is not remedial in any sense and is not to be given a broad liberal construction in favor of any party.

1994 Wyo. Sess. Laws, Ch. 86 § 2 (emphasis added).

[¶ 26] The Workers' Compensation Act (Act) must be interpreted as implementing Wyo. Const. Art. 10, § 4 which in relevant part states that "[t]he right of each employee to compensation from the fund shall be in lieu of and shall take the place of any and all rights of action against any employer contributing as required by law to the fund in favor of any person or persons by reason of the injuries or death." We have recognized that by this provision and the Act workers do not have a cause of action against employers but are assured of benefits for compensable injuries. "The traditional tort recovery, with its essential elements and historical defenses, was replaced by a state-administered industrial insurance program that required no showing of fault." Mills v. Reynolds, 807 P.2d 383, 389 (Wyo.1991). See also Anderson v. Solvay Minerals, Inc., 3 P.3d 236, 240 (Wyo.2000).

[¶ 27] We have previously interpreted Wyo. Stat. Ann. § 27-14-101(b) and determined that the Legislature has specifically renounced any rule affording liberal construction to workers' compensation statutes, and our statutory interpretations must be reached without the assistance of any presumption in favor of coverage. State ex rel. Wyo. Workers' Safety and Comp. Div. v. Sparks, 973 P.2d 507, 510 (Wyo.1999). We interpret both the constitutional provision and the statutory scheme in a way that gives effect to the lawmakers' intent and preserves the historic compromise between workers and employers. Summers, 987 P.2d at 157. We also interpret the statute as intending to "assure the quick and efficient delivery of indemnity and medical benefits to injured and disabled workers." Wyo. Stat. Ann. § 27-14-101(b) (LexisNexis 2001). In interpreting subsection 101(b), the risk of loss is placed on industry rather than on the individual employee. Casper Oil Co. v. Evenson, 888 P.2d 221, 227 (Wyo.1995).

[¶ 28] In interpreting the Act, we have applied equitable estoppel against the Division, saying:

Equitable estoppel should not be invoked against a government or public agency functioning in its governmental capacity, except in rare and unusual circumstances and may not be invoked where it would serve to defeat the effective operation of a policy adopted to protect the public.
Our holding in Bauer v. State ex rel. Wyoming Workers' Compensation Division, 695 P.2d 1048 (Wyo.1985), delineates, however, a rare and unusual cireumstance in which equitable estoppel operates against a public agency.

Rivera, 796 P.2d at 450 (quoting Big Piney Oil & Gas Co. v. Wyo. Oil & Gas Conservation Comm'n, 715 P.2d 557, 560 (Wyo.1996)). Plainly, we have determined that equitable estoppel arises and is permitted under the Act. As recently as 1999, we rejected the Division's assertion that statutory language rendered obsolete our rationale for the application of equitable estoppel doctrine. Barker, 978 P.2d at 1160. Nothing indicates that by eliminating the liberal construction rule and mandating the "quick and efficient delivery" of benefits, the legislature intended to change the equitable estoppel that this Court has applied under the Act since 1985. The Division's proposed interpretation would actually impede the legislative intent, and although we need not decide it, it is not likely that Art. 10 § 4 would permit such a statutory amendment. Our rules of statutory interpretation require that we, in seeking legislative intent, must find a consistent and realistic intendment which includes the presumed desire of the legislature to recognize its legislative duty to act constitutionally. Parker Land and Cattle Co. v. Wyo. Game & Fish Comm'n, 845 P.2d 1040, 1081 (Wyo.1993). Having previously interpreted this constitutional provision to eliminate those tort causes of actions that would provide tort remedies, the statutory amendment cannot now be interpreted as reaching common law rights and defenses other than tort. We would also point out that should we apply this language literally as the Division contends we should, it would mean that other common law remedies and defenses such as res judicata and collateral estoppel would also fall, and it is doubtful that the legislature intended this language to so broadly sweep or that the Division would desire to lose the benefit of those common law doctrines. We, therefore, conclude that the emphasized statutory language applies to the elimination of causes of action arising under tort law, and does not apply to those rules of substantive law that are applicable to avoid inequity in application of the Act. To do otherwise would threaten the historic compromise.

[¶ 29] The Division also argues that, as a matter of law, equitable estoppel does not apply because the final determination that it sent Appleby contradicted the statements made by the claims analyst, and her reliance was unreasonable after she received legal representation. We have already addressed the written notice issue. The Division's authority for its last assertion comes from a separately written opinion statement in Wyo. Workers' Comp. Div. v. Halstead, 795 P.2d 760, 775 (Wyo.1990) (Rooney, J., concurring in part and dissenting in part), opining that it should be considered unreasonable reliance if legal representation is provided during the period where a claim could have been timely filed. Appleby did not have legal representation during the period where a claim could have been timely filed, and the authority does not support the argument. The Division's arguments support the following conclusions of law made by the Director: __

15. Any reliance on the claims analyst's verbal statements would be unjustified if those statements contradicted the proper written notices received by the Petitioner.
16. Even if the Petitioner had justifiably relied on a misrepresentation by the claims analyst, that reliance would have terminated when the claims analyst told Petitioner to get an attorney, or when Petitioner spoke with an attorney in June, 1999. Since Petitioner's objection was filed on September 7, 1999, it was late even if the period to object began to run on June 80, 1999.

As Appleby contends, equitable estoppel does apply, reliance does not terminate, and these legal conclusions are in error as a matter of law. The proper legal analysis is that made above where Bauer was properly applied to the facts.

[¶ 30] We have decided that the Division is equitably estopped from claiming that Ap-pleby's request for hearing was untimely. Appleby is therefore entitled to a contested case hearing on the final determination that denied her benefits. The district court's order affirming the Director's order denying a contested case hearing is reversed, and this case is remanded for a contested case hearing by the appropriate hearing authority, either the OAH or the Medical Commission, as statute dictates. Wyo. Stat. Ann. § 27-14-601(k)(v) (LexisNexis 2001).

      . The relevant part of Wyo. Const. art. 10, § 4 states (emphasis added):
      The right of each employee to compensation from the fund shall be in lieu of and shall take the place of any and all rights of action against any employer contributing as required by law to the fund in favor of any person or persons by reason of the injuries or death.

      . Res judicata bars relitigation of previously litigated claims or causes of action, and collateral estoppel bars relitigation of previously litigated issues. Tenorio v. State ex rel. Wyoming Workers' Compensation Div., 931 P.2d 234, 238 (Wyo.1997). As recognized in this state, these doctrines incorporate a universal precept of common law jurisprudence. State, Dept. of Family Services v. PAJ, 934 P.2d 1257, 1260 (Wyo.1997).