author: VOIGT, Justice.

text:
    2003 WY 161
    James Gerard YATES, Appellant (Defendant), v. Jill Marie YATES, Appellee (Plaintiff).
    No. 03-19.
    Supreme Court of Wyoming.
    Dec. 16, 2003.

      Representing Appellant: Mitchell E. Osborn, Cheyenne, Wyoming.
    Representing Appellee: Naney D. Freu-denthal, of Davis & Cannon, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] James Gerard Yates (Father) appeals the district court's determination that he owes $105,700.50 in child support arrear-ages. In 2001, Jill Marie Yates (Mother) filed a Motion for Production of Documents because Father had failed to provide her with financial information. Father responded with a Petition for Modification of Child Support and Determination of Child Support Arrears. As a shareholder in a Subchapter S corporation, Father reported significant amounts of pass-through income on his personal federal income tax return. His primary contention at the modification hearing was that this pass-through S corporation income should not be included as income when calculating his support and arrearages. The district court agreed with Father and caleu-lated his child support without using his S corporation income. On appeal, Father asks for an additional reduction in his obligation. The district court used Father's gross income in calculating his arrearages. Father now contends that the district court should have used his after-tax income. Because Father failed to raise this issue before the district court, we affirm.

ISSUE

[T2] Father raises only one issue on appeal:

Did the trial court abuse its discretion when it failed to consider the state of the law at the time the decree of divorce was entered in defining "gross income" to be income before taxes as it applied to the computation of the child support arrearage owed by defendant. __

FACTS

[13] When the parties were divorced, in August of 1989, the legislature had recently enacted Wyo. Stat. Ann. §§ 20-6-801, et seq. (1989), setting forth the guidelines for caleu-lating child support. In its divorce decree, the district court awarded Mother custody of the parties' two children subject to Father's reasonable visitation rights, and ordered that child support be paid as follows:

Pursuant to the child support guidelines set forth in W.S. § 20-6-301 (1989 Supp.) et seq, HUSBAND be, and he hereby is, obligated to pay WIFE a contribution for the support of CHILDREN in the amount of thirty percent (80%) of his adjusted gross income, but in no event less than Three Hundred Ninety Dollars ($390.00) per month. Adjusted gross income is defined to be all of HUSBAND's gross income from any and all sources, less a living allowance for HUSBAND of Four Hundred Fifty Dollars ($450.00) per month which shall not be subject to a child support obligation[.]

[14] At the time of the divorce, Father's annual adjusted gross income, as defined by the divorcee decree (his gross income minus a $450.00 monthly living allowance), was $14,636.00. For the next five years, Father met, or came close to meeting, his child support obligation. However, in 1995, his income nearly doubled, yet he did not increase his child support payments accordingly. Father was a partner in a relatively successful business venture and his income continued to increase during the next five years. In 2000, Father reported $310,084.00 of income on his personal income tax return. However, this included $167,551.00 of pass-through S corporation income that was not considered income for child support purposes. Therefore, in 2000, Father's adjusted gross income was $136,592.00, yet he paid only $6,000.00 in child support.

[15] In August of 2001, Mother filed a Motion for Production of Documents, in which she asserted that Father had failed to provide copies of his annual tax return as required by the divorcee decree. She requested copies of Father's tax returns from 1989 to 2000, and asked that Father identify each and every business venture in which he had an interest. In response, Father petitioned for modification of child support and determination of arrearages. To his petition, Father attached a record of his child support payments, proffered as evidence that he had satisfied his obligation. However, after the parties exchanged financial affidavits, Father conceded that he was at least $45,000.00 in arrears.

[16] In June of 2002, the district court heard the case to determine arrearages and address the petition to modify. Father was represented by counsel and Mother appeared pro se. Both Mother and Father testified at the hearing. During Father's testimony, he offered into evidence Exhibit C, a chart outlining his child support obligation and arrear-age amount from 1989 to 2002. Father described the chart as an "aid for the Court in determining [his] arrearages." The district court's ultimate determination of Father's ar-rearages appears to have been based on this chart, as the numbers the district court used are exactly the same as those provided by Father.

[17] The focal point of the hearing was whether the district court should include the S corporation income as part of Father's gross income when determining arrearages and future child support. The bulk of Father's testimony related to his S corporation income and his role and involvement in the business. Besides Mother and Father, the only other witness called was John Howard, Father's accountant. His testimony also focused on the S corporation issue. Mr. Howard testified generally about the nature of S corporation income and the benefits and risks of that corporate structure. Specifically, he explained that the pass-through income reported on Father's personal tax return was not available to Father, but rather was always put back into the corporation to facilitate growth and pay taxes and other debts.

[18] The question of whether taxes should be included in determining Father's gross income-the issue Father raises in this appeal-did not come up at the hearing until closing arguments. Father's attorney was addressing the arrearage amount when the district court interrupted: |

THE COURT: Well, it's been a while since I looked at that from earlier hearings, but isn't it at least contemplated by the prior documents that gross income meant after taxes and after social security deductions?
[FATHERS ATTORNEY]: Your Hon- or, we're in a very precarious part and that's normally the approach that I know the Court takes.
THE COURT: No, I'm talking about when the decree was entered.
[FATHERS ATTORNEY]: What happened with this decree, Your Honor, because it was entered in the time between statutes going from one formula to another is that rather than using the statutory definition of gross income, or using-I guess getting to a net income figure, this decree actually says just deduct $450 a month from your gross. We're not going to worry about what your tax is.
THE COURT: Wait. Doesn't it define or contemplate that the gross means what he gets from his employer? Because he was employed at the time. What he got from his employer, he had deducted out of it withholding and social security. So it wasn't based on the top line. It was based upon what his check showed.
[FATHER'S ATTORNEY]: Well, Your Honor, I would agree that that is a great way and probably the way the Court contemplated that to happen. That isn't the way we've prepared our Exhibit C. And I will tell you that we used the actual gross without those deductions. And if we need to go back and determine what his social security and his presumptive tax would have been during those years, I certainly can do that.
But we took gross income to mean gross income. But I think you're right. I think that at that time, gross income was being defined differently than we define gross income today.
THE COURT: Well, somehow I have the impression that in the file I reviewed some documents that would indicate that they were deducting those taxes. Maybe it was just an exhibit at trial, but I see-
[FATHERS ATTORNEY]: And, Your Honor, I will tell you I wouldn't have even thought to go to that point to try to figure out where they were coming from. I was going from the literal terms of the decree and the statute that existed in 1989.
THE COURT: See, those documents must have been part of trial exhibits. At least that would be consistent with where I got the idea there was an Exhibit A that showed some deductions and it contemplated a child support estimate of $315. And that would have been the defendant's exhibits. So you may be right. It wasn't necessarily in the mind of the Court. I just remember that when I reviewed the file.
[FATHER'S ATTORNEY]: Well, Your Honor, I certainly, as I said, I could take that Exhibit C and to aid the Court rerun the gross income numbers and present an amended exhibit to [Mother] and to the Court. I have those orders available to me and my office can do that within a couple of hours.
THE COURT: All right. Continue with your argument. I guess it's important for me to know that Exhibit C was based upon gross without taking into consideration any taxes. I didn't realize that when it was presented to be honest with you.
Go ahead.

Father's attorney then finished her closing argument without further mention of the issue.

[T9] In its decision letter and order, the district.court modified the child support obligation and addressed Father's arrearages. With respect to the arrearages, the district court accepted Father's argument and did not use the pass-through S corporation income as part of its calculation. Based on the language of the divorcee decree, the district court calculated Father's arrearages at thirty percent of his adjusted gross income, and entered a judgment on the arrearage in the amount of $105,700.50,

[110] Father appeals from that judgment and subsequent order.

STANDARD OF REVIEW

[T11] Father challenges the district court's determination of child support arrear-ages. We recently stated:

Decisions related to child support are assigned to the sound discretion of the district court. Jordan v. Brackin, 992 P.2d 1096, 1098 (Wyo.1999). We will not disturb a district court's ruling unless we are convinced that the court has abused its discretion. Id.
"In determining whether there has been an abuse of discretion, we focus on the 'reasonableness of the choice made by the trial court' Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the cireumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious. Id. (citing Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985)); [ (Basolo v. Basolo, 907 P.2d 348, 353 (Wyo.1995)) ]."

Cossette v. Cossette, 2003 WY 107, ¶ 10, 76 P.3d 795, 797 (Wyo.2003) (quoting Jordan v. Brackin, 992 P.2d 1096, 1098-99 (Wyo.1999)).

DISCUSSION

[112] Father argues that the district court should have used his after-tax income in calculating his arrearages. He presents two arguments in support of this position. First, he contends that the undefined term "gross income" in the 1989 child support statute should be interpreted to mean "disposable income" as defined in the 1989 income withholding statute. Second, he asserts that, although the 1989 child support statute required that child support be calculated using "gross income," the prior and subsequent versions of that statute indicate that the legislature intended "gross income" to mean income after taxes. Father presented neither of these arguments to the district court at the modification hearing.

[113] We have stated that " '[wle strongly adhere to the rule forbidding us to "consider for the first time on appeal issues that were neither raised in, nor argued to, the trial court," except for those issues which are jurisdictional or are fundamental in nature" "_ Hronek v. St. Joseph's Children's Home, 866 P.2d 1305, 1309 (Wyo.1994) (quoting Bredthauer v. TSP, 864 P.2d 442, 446-47 (Wyo.1993) and Oatts v. Jorgenson, 821 P.2d 108, 111 (Wyo.1991)). " 'We follow this rule because "it is unfair to reverse a ruling of a trial court for reasons that were not presented to it, whether it be legal theories or issues never formally raised in the pleadings nor argued to the trial court." ' " Hronek, 866 P.2d at 1309 (quoting Bredthauer, 864 P.2d at 446-47 and Oatts, 821 P.2d at 111); see also 5 Am.Jur.2d Appellate Review § 690 (1995). "We of course must not judge the matter of abuse of discretion on the basis of showings made to us on appeal. We must judge on the basis of showings made to the trial court...." Holly Sugar Corp. v. Perez, 508 P.2d 595, 599 (Wyo.1973). We have articulated and followed this principle on numerous occasions. See Rock Springs Land and Timber, Inc. v. Lore, 2003 WY 100, ¶ 35, 75 P.3d 614, 627 (Wyo.2003); State v. Campbell County School Dist., 2001 WY 90, ¶ 35, 32 P.3d 325, 333 (Wyo.2001); Daley v. Wenzel, 2001 WY 80, ¶ 19, 30 P.3d 547, 552-53 (Wyo.2001); Robinson v. Pacificorp, 10 P.3d 1133, 1136 (Wyo.2000); Cooper v. Town of Pinedale, 1 P.3d 1197, 1208 (Wyo.2000); WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo.1998); Squaw Mountain Cattle Co. v. Bowen, 804 P.2d 1292, 1296 (Wyo.1991); Epple v. Clark, 804 P.2d 678, 681 (Wyo.1991); Esponda v. Esponda, 796 P.2d 799, 802 (Wyo.1990); R.O. Corp. v. John H. Bell Iron Mountain Ranch Co., 781 P.2d 910, 913 (Wyo.1989); U.S. Aviation, Inc. v. Wyoming Avionics, Inc., 664 P.2d 121, 125 (Wyo.1983); Roush v. Roush, 589 P.2d 841, 844 (Wyo.1979); Thickman v. Schunk, 391 P.2d 939, 943 (Wyo.1964); Gore v. John, 61 Wyo. 246, 157 P.2d 552, 556 (1945); and Ideal Bakery v. Schryver, 43 Wyo. 108, 299 P. 284, 293 (1931).

[114] Father does not suggest that this newly raised issue is jurisdictional or fundamental in nature; rather, he asserts that he properly raised the issue before the district court. He contends that the issue was raised in his Petition for Modification of Child Support and Determination of Child Support Arrears where he asked the district court to "review and adjust the child support obligation. ..." He maintains that the request to "review" amounts to a request that the district court interpret the language of the decree and determine how much child support was owed. Father also asserts that merely bringing a matter to the district court's attention has been interpreted to preserve the issue for review on appeal. He quotes Polo Ranch Co. v. City of Cheyenne, 969 P .2d 132, 137 (Wyo.1998): "(though perhaps the claim was not prosecuted with the greatest clarity, especially with regard to the relief sought, ... the matter was broached on several occasions by both parties ... [ulnder these circumstances, we cannot say that the issue was not raised below." He also notes Carlson v. BMW Indus. Service, Inc., 744 P.2d 1383, 1387 (Wyo.1987), where we held that an attorney's statements that " 'if we can't continue the matter until such time ...' " sufficiently raised the issue of abuse of discretion in denying a continuance.

[115] Father's position is that an issue may be raised by implication from the pleadings, or that the mere mentioning of an issue is sufficient to preserve it for appeal. This notion runs contrary to both the purpose of the rule and our established jurisprudence. We have held that we will not consider issues that were not "raised below in any meaningful manner." Bequgureau v. State, 2002 WY 160, ¶ 11, 56 P.3d 626, 631 (Wyo.2002) (emphasis added). "It is a basic premise of appellate practice that to preserve an issue for appeal, that issue must be called to the attention of the trial court in a clear manner." Elder v. Jones, 608 P.2d 654, 660 (Wyo.1980) (emphasis added).

[T16] Father never clearly called the issue of whether to use after-tax income in calculating his arrearages to the district court's attention nor was it ever raised in any meaningful manner. Not until closing argument was the issue even mentioned, and then it was the district court judge, not Father, who raised it. No evidence was presented to the district court directly regarding this issue. Moreover, the evidence presented to the district court by Father was actually contrary to the position he now takes on appeal. At the hearing, Father presented Exhibit C, a chart that he and his attorney prepared as an "aid for the Court in determining [his] arrearages." This chart used his gross, rather than after-tax, income to calculate his arrearages. Father now asks us to do just the opposite. Indeed, Father's presentation to the district court appears to have been predicated on his attorney's perception that the statute's and the divorce decree's deduction of a $450.00 per month living allowance was in lieu of a deduction for taxes paid:

What happened with this decree, Your Honor, because it was entered in the time between statutes going from one formula to another is that rather than using the statutory definition of gross income, or using-I guess getting to a net income figure, this decree actually says just deduct $450 a month from your gross. We're not going to worry about what your tax is.

(Emphasis added.) In other words, Father conceded in district court that he was not entitled to the additional deduction that he is now pursuing on appeal.

[T 17] Not only was the issue never clearly raised or meaningfully addressed, it appears that the issue did not even occur to Father until the district court raised it during closing arguments. After the district court interrupted, Father's attorney explained that when preparing the exhibit in which they used gross income, they "took gross income to mean gross income.... Your Honor, I will tell you I wouldn't have even thought to go to that point to try to figure out where they were coming from. I was going from the literal terms of the decree and the statute that existed in 1989." Father's attorney offered to amend Exhibit C using after-tax income; however, no amendment appears in the record.

[118] Father now contends that "determination of the legislative intent and the meaning of 'gross income, as used in the 1989 version of W.S. § 20-6-301, et seq. was a 'material factor deserving significant weight' in the case at hand," and that the district court "ignored the interpretation of that term within the statute and therefore committed an abuse of its discretion." However, this "factor" was " 'never formally raised in the pleadings nor argued to the trial court " Daley, 2001 WY 80, ¶ 20, 30 P.3d at 553 (quoting Bredthauer, 864 P.2d at 446-47); see also Oatts, 821 P.2d at 111. We cannot decide whether a district court abused its discretion by ignoring a factor associated with an issue that was never properly raised. Holly Sugar Corp., 508 P.2d at 599.

[119] We acknowledge that we have, in the past, considered issues not raised before the district court, despite the fact that they did not involve jurisdiction or were not fundamental in nature. In YellowBear v. State, 874 P.2d 241, 245 (Wyo.1994), we stated, "[alithough Appellant properly should have initially raised all his claims in the district court, in the interest of judicial economy, we will consider the claims which he has raised for the first time on appeal." See also Boller v. Western Low Associates, P.C., 828 P.2d 1184, 1187 (Wyo.), cert. denied, 506 U.S. 869, 113 S.Ct. 198, 121 L.Ed.2d 140 (1992). We have also addressed issues not raised before the district court that are bound to emerge again if left unresolved. See Joyner v. State, 2002 WY 174, ¶ 13, 58 P.3d 331, 336 (Wyo.2002). Such exceptions to our normal rule are, however, rare.

[T20] Father does not argue nor do we find that the new issue he brings before us raises a jurisdictional question. Neither is it so fundamental as to require present resolution in the absence of meaningful development in the district court. We will abide by our long-standing rule forbidding us to consider for the first time on appeal an issue that was not raised or argued in the district court. Father, as the appellant, bears the burden of presenting a sufficient record upon which a decision can be based. Erhart v. Evans, 2001 WY 79, ¶ 18, 30 P.3d 542, 547 (Wyo.2001) (citing Wood v. Wood, 865 P.2d 616, 617 (Wyo.1993)). Likewise, the burden of demonstrating an abuse of discretion rests on the appellant. Robinson v. Hamblin, 914 P.2d 152, 155 (Wyo.1996). Father has not met those burdens.

CONCLUSION

[T21] The issue before the district court was whether pass-through Subchapter S corporation income should be included in Father's income for child support computation purposes. The district court resolved that issue by relying on the divorcee decree and the controlling statute. Father now asks this Court to decide whether income taxes and other expenses should have been deducted from his gross income before computing his child support obligation. That issue not having been raised before the district court, we decline to consider it. The judgment of the district court is affirmed.

      . This statute, in place only one year, was completely overhauled in the 1990 legislative session. The language pertinent to this appeal was found in Wyo. Stat. Ann. § 20-6-303:
      The basic child support obligation may be apportioned between the parents in proportion to their incomes. Four hundred fifty dollars ($450.00) income per month per parent shall be considered to be a minimum living allowance and shall not be subject to child support obligation.

      . Justice Thomas criticized this approach in his dissent stating, "I initially note that, despite the claim made in the majority opinion justifying this disposition on the basis of 'judicial economy," we should not disregard our long-standing rule that forbids the consideration of issues that are raised for the first time on appeal." Boller, 828 P.2d at 1188.


source: Caselaw Access Project

author: GOLDEN, Justice.

license: Public Domain

text:
    2003 WY 162
    In the Matter of the WORKER'S COMPENSATION CLAIM OF: Keith IVERSON, Appellant (Employee-Claimant), v. FROST CONSTRUCTION, Appellee (Employer-Objector).
    No. 02-208.
    Supreme Court of Wyoming.
    Dec. 16, 2003.

      Representing Appellant: Colin M. Simpson of Simpson, Kepler & Edwards, LLC, Cody, Wyoming.
    Representing Appellee: Randy L. Royal, Greybull, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[11] In this appeal, the primary issue we must resolve is whether the hearing examiner properly resolved the date of compensable injury. Appellant Keith Iverson was involved in two separate incidents that caused pain in his lower back. After the first incident, he completed all assigned shifts and overtime for several weeks. After the see-ond incident, he finished his shift and completed another the next day, but then notified his employer of the injury, discontinued work, sought medical treatment and, based upon x-rays, was diagnosed with a herniated disc.

[12] Iverson filed an injury report within one week after the second incident and, although the Worker's Compensation Division granted benefits, Appellee Frost Construetion contested that decision and requested a hearing. The Division withdrew, and Frost appeared at the hearing. Iverson contended that the second incident resulted in the herniated dise; however, the hearing examiner decided that Iverson had suffered a compen-sable, work-related injury on the earlier occasion and, because he neither reported the injury to a supervisor nor filed an injury report within the statutory time frame, his claim for benefits was found to be untimely and denied. The denial of benefits was upheld by the district court, and that order is challenged on those grounds articulated in the statement of issues.

[13] We accept the hearing examiner's conclusion that Iverson suffered a work-related injury in the first incident; however, our law is well established that statutory reporting requirements are not triggered when an employee sustains an apparent trivial injury which does not result in present disability and which would not reasonably be expected to cause future disability. An employee is charged with knowing the full extent and nature of the injury no later than when a correct diagnosis and prognosis of present or likely future disability is communicated to the claimant. At that point, the injury is discovered, it is compensable, and the statute of limitations begins to run. Applying the correct rules of law, we hold that the relevant facts show that Iverson timely reported his injury to his supervisor and the Division. We reverse and remand for entry of an order granting benefits.

ISSUES

[1 4] Iverson presents the following statement of the issues:

I. The decision of the Office of Administrative Hearings, in setting aside its finding of compensability and ordering a contested hearing, was contrary to law and established precedent.
II. The decision of the Office of Administrative Hearings was outside the scope of the issues raised in these proceedings and therefore improper.
III. The decision of the Office of Administrative Hearings, that Appellant did not timely comply with the requirements of WS. § 27-14-502(a) (LexisNexis 2001), was contrary to law, established precedent and the great weight of the evidence.

IV. The decision of the Office of Administrative Hearings in denying benefits to Appellant was not supported by substantial evidence.

Frost does not rephrase any of the issues.

FACTS

[1 5] Iverson worked as a truck driver for Frost Construction. On April 8, 1998, another Frost driver operating a road grader contacted the back of Iverson's truck at a few miles per hour. Iverson was jolted and experienced a burning sensation in his lower back. The other driver testified that the road grader had a push plate on the front and Iverson's truck had a push plate on the back that allowed for contact when the heavy trucks became stuck in fill. The road grader driver testified that he pushed various dump trucks in the same manner up to twenty or thirty times per day. Neither driver reported the contact to Frost, and Iverson continued to work all assigned shifts including overtime.

[16] In early May, Iverson injured himself while moving items for his girlfriend but again continued to work. Several weeks later, Iverson claimed that he experienced severe back and leg pain for the first time on May 14, 1998, while chopping asphalt from the gates of his bellydump truck while lying on his back. However, he completed his shift. Iverson worked the next day, May 15, 1998, and claimed that his back and leg hurt while shoveling gravel. The hearing examiner found that Iverson's claim of injury on these days was not credible because he worked full shifts on both days and did not tell his supervisor that he had injured his back. Based on these findings, the hearing examiner concluded that Iverson's injury had occurred in the April work incident, he had failed to timely report it, and this failure prejudiced Frost. |

[T7] The record shows that on May 18, 1998, Iverson discontinued working, notified his employer that he had been injured, and received chiropractic treatment from Dr. Grant who testified that he believed that Iverson was suffering from a misaligned vertebra. Iverson filed an injury report on May 22, 1998, that stated he had hurt his back at work on May 14. When Dr. Grant's manipulations did not relieve his pain, Iverson saw Dr. Gary Shinn on June 1, 1998. Dr. Shinn took x-rays and diagnosed a herniated disc. Dr. Shinn referred Iverson to Dr. Moseley for a surgical evaluation. On June 8, 1998, Dr. Moseley documented that, after Iverson was rear-ended, he developed burning in his back but continued to work and it was only after he twisted his back on May 14, 1998, that Iverson developed leg pain.

[18] Iverson's girlfriend testified at the hearing that, after Iverson was struck by the road grader, he complained of back and leg pain. Iverson testified that he did not experience leg pain until he twisted his back on May 14. Considering this testimony to be a dispute in the evidence, the hearing examiner determined that Iverson's testimony was not credible, determined that the girlfriend's testimony established leg pain in April, and concluded that Iverson had not been injured in May, but rather in April.

[19] A review of Iverson's girlfriend's complete testimony shows that she did not specifically state that the leg pain began in April, was never precise about the dates of his complaints, and placed the time of his worsening symptoms at the time that she began to take him in for medical treatment. The medical documents indicate that Iverson received no medical treatment until after May 14, 1998. However, the hearing examiner denied benefits, and, after the district court upheld that denial, this appeal followed.

DISCUSSION

Standard of Review

[110] "The claimant has the burden of proving every essential element of his claim by a preponderance of the evidence. Under the statutory definition of injury, he must prove that his injury arose out of and in the course of his employment. Whether an employee's injury occurred in the course of his employment is a question of fact." Kuntz-Dexter v. State ex rel. Wyo. Workers' Safety and Comp. Div.; 2002 WY 101, ¶ 9, 49 P.3d 190, ¶ 9 (Wyo.2002) (citations omitted).

[Til] The substantial evidence test is the appropriate standard of review in appeals from Wyoming Administrative Procedures Act contested case proceedings when factual findings are involved and both parties submit evidence. Id. at ¶ 10 (citing Newman v. Wyo. Workers' Safety and Comp. Div., 2002 WY 91, ¶ 22, 49 P.3d 163, ¶ 22 (Wyo.2002). Because both parties presented cases-in-chief, we apply the substantial evidence standard. We afford respect and deference to a hearing examiner's findings of fact if they are supported by substantial evidence. Kuntz-Dezter, ¶ 10. Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Id.

[T12] Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Id. When only the party with the burden of proof submits evidence in the contested case proceeding and that party does not ultimately prevail, the arbitrary or capricious standard governs the judicial review of that agency decision. Id. Even if the factual findings are found to be supported. by substantial evidence, the ultimate agency decision may be found to be arbitrary or capricious for other reasons. Id.

[T18] We do not examine the record only to determine if there is substantial evidence to support the hearing examiner's decision, but we must also examine the conflicting evidence to determine if the hearing examiner could have reasonably made its finding and order upon all of the evidence before it. Id. A hearing examiner's conclusions of law are afforded no special deference and will be affirmed only if truly in accord with law. Id.; State ex rel. Wyo. Workers' Comp. Div. v. Barker, 978 P.2d 1156, 1159 (Wyo.1999).

Law On Compensable Injuries

[114] An employee is required to timely notify his employer of an injury and file an injury report with the Division. Wyo. Stat. Ann. § 27-14-502(a) (LexisNexis 2008). A failure to timely report the accident or injury as required by statute is a presumption that the claim shall be denied. § 27-14-502(c). The statutory reporting requirements do not begin to run until the employee becomes aware that an accident has caused an injury; and the term "injury" as used in the compensation statutes means compensa-ble injury. Rice v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2001 WY 21, ¶ 3, 19 P.3d 508, ¶ 13 (Wyo.2001); Wesaw v. Quality Maintenance, 2001 WY 17, ¶ 10, 19 P.3d 500, ¶ 10 (Wyo.2001); Baldwin v. Scullion, 50 Wyo. 508, 530-31, 62 P.2d 531, 539 (Wyo.1936).

[115] Our law on determining the date of a compensable injury is well-established. Rice, ¶ 13; Bemis v. Texaco, Inc., 401 P.2d 708, 709 (Wyo.1965). We have consistently held that when a correct diagnosis or prognosis of present or likely future disability is communicated to the claimant, the injury is discovered, it is compensable, and the statute of limitations begins to run. City of Casper v. Haines, 886 P.2d 585, 589 (Wyo.1994) (citing Aanenson v. State ex rel. Worker's Comp. Div., 842 P.2d 1077, 1081-83 (Wyo.1992) (discussing this Court's decisions regarding compensable injury)). "[ Wlhen determining the time a particular injury became compensable, it should be asked: When would a reasonable person, under the cireum-stances, have understood the full extent and nature of the injury and that the injury was related to his or her employment?" Aanenson, 842 P.2d at 1082. This question necessarily requires a careful evaluation of all facts to determine when an employee reasonably understood the nature and seriousness of his condition and that it was work-related.

[¥16] Our previous decisions have never burdened an employee with filing claims for trivial injuries to avoid timeliness issues. Big Horn Coal Co. v. Wartensleben, 502 P.2d 187, 188 (Wyo.1972) (citing Potter v. Midland Cooperatives, Inc., 248 Minn. 380, 80 N.W.2d 59, 61 (1956)). The employee, however, may not ignore these requirements for compensable injuries because notice requirements and the statute of limitations exist to allow employers to investigate claims, monitor medical care, and avoid stale claims. Sherwin-Williams Co. v. Borchert, 994 P.2d 959, 964 (Wyo.2000). The finder of fact is charged with determining the time and cause of a compensable injury; however, whether an employee's claim is to be barred for failure to timely file notice or a claim is a mixed question of fact and law. Aanenson, 842 P.2d at 1080.

Review of Record

[¥17] The hearing examiner did not believe that Iverson was injured on May 14, 1998, while working for the employer. Iverson contends that this finding is not supported by substantial evidence and is against the great weight of the evidence. The record shows that Iverson testified he injured himself on May 14, while chopping asphalt from a belly-dump truck, and he specifically described his actions when the injury occurred. Frost had a witness testify that it was not possible to clear asphalt from a belly-dump truck in that manner. A hearing examiner is entitled to reject claimant's testimony about events and dates if other evidence indicates that it is not credible. Kuntz-Dexter, ¶ 12. However, an "inconsistency" applies to propositions that cannot both be true, and that term is inappropriate to characterize propositions of differing degrees of completeness. Ikenberry v. State ex rel. Wyo. Workers' Comp. Div., 5 P.3d 799, 803 (Wyo.2000). Our review of the record shows that the testimony of these two witnesses were inconsistent, and the hearing examiner was entitled to reject Iverson's version.

[¥18] The hearing examiner decided that Iverson had been injured in a work-related accident on April 3, 1998. We find that substantial evidence supports this finding. The driver of the road grader, Wayne Allshousen, testified that he had impacted Iverson's truck from behind and, at the time the incident occurred, Iverson had commented to Allshousen that the contact had hurt his back. Alishousen noted Iverson had continued to work. The hearing examiner specifically found that Allshousen was a eredible witness. The record shows Iverson testified similarly about the incident.

[119] Having established that a work-related injury occurred, the hearing examiner then relied upon Iverson's girlfriend's testimony as to when Iverson began to experience leg pain to establish the date of com-pensability. The hearing examiner believed that her evidence showed that Iverson experienced leg pain in April and contradicted Iverson's contention that he did not experience leg pain until he was injured in May. As discussed in the facts, however, the girlfriend's testimony did not specify dates nor did she indicate that the leg pain happened before Iverson began seeking medical treatment. She recollected that she took Iverson to several doctors for medical treatment when he experienced back and leg pain. The record shows that Iverson sought no medical treatment until late May. Our review of the record shows that the testimony of these two witnesses were not inconsistent, only different if not viewed completely, and the hearing examiner was not entitled to reject Iverson's version.

[120] Having accepted the hearing examiner's conclusion that Iverson suffered a work-related injury on April 3, 1998, we must review the entire record to determine when Iverson knew the nature and full extent of his injury. The parties do not dispute that Iverson did not mention that the road grader contact in April hurt his back, or that Iver-son continued to work all shifts and overtime until May 18, 1998, when he called and reported an injury and sought medical treatment. Legally, Iverson had no obligation to report a trivial incident to avoid a timeliness issue. Rice, 114; Big Horn, 502 P.2d at 188.

[121] If, as the hearing examiner found, Iverson did not injure himself on May 14, the evidence remains that by May 18, Iverson claimed that he was beginning to experience back and leg pain significant enough to discontinue working. Iverson immediately sought medical treatment and ultimately received a medical diagnosis that he had a herniated dise. Both Iverson and his girlfriend testified that he sought medical treatment because of back and leg pain. Although the hearing examiner did not find Iverson a credible witness, the girlfriend was specifically found to be credible and the record shows that nothing contradicted the testimony on this point. Accordingly, the weight of the evidence shows that Iverson injured himself in April, but did not know the nature of and the full extent of his injury until May 18, 1998, when he notified his employer of injury, discontinued working, and sought medical treatment.

[122] We hold that the hearing examiner erred in determining the date of compensable injury was April 3, 1998, and the claim was untimely filed. The date of compensable injury is May 18, 1998, the date it became apparent to Iverson that his injury had resulted in compensable disability. Mitchell v. State Recreation Comm'n Snowmobile Trails, 968 P.2d 37, 40 (Wyo.1998). Iverson notified his employer of injury on an earlier date and filed his injury report on May 22, 1998, based upon his inability to work. His claim for benefits was not untimely filed.

[123] The order upholding the denial of benefits is reversed, and this case is remanded with directions that an order be entered granting the claimant benefits.


author: LEHMAN, Justice. PRICE, District Judge,

text:
    2003 WY 167
    Shirley M. LARSEN and Polly M. Leyva, Appellants (Plaintiffs), v. BANNER HEALTH SYSTEM, an Arizona Corporation, formerly known as Lutheran Hospitals and Homes Society of America, Appellee (Defendant).
    No. 02-252.
    Supreme Court of Wyoming.
    Dec. 23, 2003.

      Representing Appellants: John H. Robinson of Jamieson & Robinson, LLC, Casper, WY; and Timothy W. Miller of Reeves & Miller, Casper, WY. Argument by Messrs. Robinson and Miller.
    Representing Appellee: Robert M. Shively and Amy M. Taheri, Casper, WY; and Jeffrey J. Campbell of Campbell, Yost, Hergen-roether, Clare & Norell, P.C., Phoenix, AZ. Argument by Mr. Shively.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and PRICE, D.J.
   LEHMAN, Justice.

[11] This case comes before this court as a certified question from the United States District Court for the District of Wyoming. We are called upon to answer the question of whether Wyoming allows recovery of purely emotional damages in a negligence action brought by a mother and daughter who were separated because two babies were switched at birth. We answer the certified question in the affirmative.

ISSUE

[12] The issue presented by the certified question is:

Whether a mother and daughter, who were separated for forty-three years because a hospital switched two newborn babies at birth, can maintain a negligence action in which the only alleged damages are great emotional pain, humiliation, anxiety, grief, and expenses for psychological counseling?

FACTS

[13] The certification order from the United States District Court sets forth a brief statement of facts relevant to the certified question. Those facts are as follows:

At 8:07 a.m. on April 8, 1958, Jean Morgan gave birth to a baby girl, Debra, at Campbell County Memorial hospital. Shortly thereafter, Polly Leyva gave birth to a baby girl named Shirley. The hospital staff switched Shirley and Debra in those early morning hours when the respective mothers were unconscious. When the mothers regained consciousness, Debra went home with Polly Leyva and Shirley went home with Jean Morgan.
The members of the hospital staff who switched the newborns and then failed to correct the mistake were acting within the seope of their employment for Banner Health System formerly known as Lutheran Hospitals and Homes Society of America. Banner Health Systems has staffed and operated Campbell County Memorial Hospital at all relevant times.
Shirley "Morgan" grew up in the Morgan home, however, she did not look like the other Morgan children due to a darker skin coloration. Because Shirley had a darker complexion, James Morgan, the "father," openly and frequently asserted that Shirley was not his child. The complaint alleges that due to James' mistrust, Shirley was ostracized and "terribly mistreated" by James Morgan and the Morgan siblings.
On April 3, 2001, a DNA test was performed to resolve the lingering doubts that James Morgan harbored about his wife's infidelity. The test established that James Morgan was not Shirley's father. A subsequent test performed on May 3, 2001, revealed that Jean Morgan was not Shirley's mother.
After the results of the tests, Shirley began searching for her biological mother. She was able to determine that only two children were born at that hospital on that day. She subsequently contacted Debra with the shocking news. On October 4, 2001, Debra called Polly Leyva and informed her of the disturbing revelation. Shortly after this phone call, Shirley introduced herself to Polly as her biological daughter. Unfortunately, Shirley's real father died several years ago.
Plaintiffs in this action are Shirley Larsen ({/k/a Shirley Morgan) and Polly Ley-va. Plaintiffs have brought a negligence claim against the Defendant, Banner Health Systems, for switching the children at birth. However, the complaint only alleges damages for "great emotional pain, humiliation, anxiety, grief, and the expenses for psychological counseling." On August 28, 2002, the defendant filed a motion to dismiss arguing that "(there is no cause of action recognized in Wyoming for mere negligence which results only in alleged emotional injury."

STANDARD OF REVIEW

[14] We review the certified question pursuant to W.R.A.P. 11. Under this rule we are asked to settle questions of law in which it appears there is no controlling pree-edent from this court. W.R.AP. 11.01.

DISCUSSION

[15] This case requires us to examine the situations in which a plaintiff may make a claim for emotional damages. "Compensation for emotional distress is not a new concept in Wyoming." Gates v. Richardson, 719 P.2d 193, 194 (Wyo.1986). Yet, as this case demonstrates, difficulty arises in determining exactly when a plaintiff may make a claim for emotional damages. A brief review of our previous decisions on this subject shows that the cireumstances in which we allow plaintiffs to make claims for emotional damages are limited.

[16) Traditionally recovery for mental or emotional injury was only allowed when such injury was linked to an actual or threatened physical impact. Id., at 195 (citing W. Kee-ton, Prosser and Keeton on Torts § 54 at 362-64 (1984)). Recovery was generally not allowed in cases where negligent acts caused purely emotional harm and there was no impact or threat of impact. Gates, 719 P.2d at 195. The reasons for limiting emotional damages in such a manner have generally been identified as: 1) emotional disturbance which is not severe enough to have physical consequences is relatively harmless so the task of compensating for it would be unduly burdensome; 2) bodily harm provides a guarantee of genuineness without which emotional distress is too easily feigned; and 3) where a defendant's conduct is merely negligent the magnitude of his fault is not such that he should be required to compensate the plaintiff for a purely mental disturbance. Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 178-79 (1982) (citing Restatement, Second, Torts $ 486A, emt. b).

[17] Many state courts have modified this traditional rule. These courts have ree-ognized that in some instances other considerations subjugate the reasons for limiting emotional damages. Therefore, some courts have embraced the idea that a duty of care should extend to at least some plaintiffs who suffer purely mental injuries Gates, 719 P.2d at 195 and n. 1 (collecting cases). In Wyoming we have modified the traditional rule and have allowed recovery for purely emotional injury. However, like most states, Wyoming has clearly restricted the instances in which recovery for emotional injury without accompanying physical injury will be allowed. Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo.1997).

[T8] Recovery for purely emotional distress is permitted in Wyoming in certain limited underlying actions. These actions are: "1) some intentional torts, Waters v. Brand, 497 P.2d 875, 877-878 (Wyo.1972) (false imprisonment); Cates v. Eddy, 669 P.2d 912, 921 (Wyo.1983) (malicious prosecution); 2) violation of certain constitutional rights, Town of Upton v. Whisler, 824 P.2d 545, 549 (Wyo.1992); and 8) breach of the covenant of good faith and fair dealing, State Farm Mutual Auto. Ins. Co. v. Shrader, 882 P.2d 813, 833 (Wyo.1994)." Blagrove, 934 P.2d at 1275-76. We have also recognized the torts of intentional and negligent infliction of emotional distress, but we have done so only under limited cireumstances. Blagrove, 934 P.2d at 1275; Gates, 719 P.2d at 195 (negligent infliction of emotional distress limited by the requirements of a family relationship and observation of serious bodily harm); Leithead v. American Colloid Co., 721 P.2d 1059, 1066 (Wyo.1986) (intentional infliction of emotional distress limited by the requirements of extreme or outrageous conduct and severe emotional distress).

[49] This court has also considered the issue of purely emotional damages in a negli-genee action involving a car collision. In Daily v. Bone, 906 P.2d 1039 (Wyo.1995), Bone failed to stop the snowmobile he was driving at a stop sign. Bone's failure to stop caused a collision with Daily's vehicle. Id., at 1042. Daily was not physically injured in the collision; Bone, however, was killed as a result of the impact. Id. Witnessing Bone's impact and death caused Daily posttraumatic stress disorder, depression, and agoraphobia. Id. We held that recovery in tort for injuries arising out of an automobile accident should not be denied simply because the plaintiff's injuries were mental rather than physical, as long as the plaintiff could prove negligence, impact, and damages proximately flowing therefrom. Id., at 1044.

[110] Our holding in Daily convinced some that we had established a claim for negligence alleging only mental injury. In Blagrove, however, we explained that our decision in Daily "has the limited seope of allowing recovery for mental injury absent physical injury in an automobile collision case." Blagrove, 934 P.2d at 1276 (holding that as a general rule emotional distress damages in connection with property damage are not compensable). We went on to explain that Daily resulted from the particular facts of that case and "did not generally establish that a claim for negligence alleging only mental injury had been recognized in Wyoming." Id. However, we note that Bla-grove was a case in which the defendant's negligence resulted in property damage; and we qualified the previous statement by also saying that Daily did not provide "an analysis which would extend its result to a property damage situation."

[111] Our most recent in-depth discussion of the availability of emotional distress damages in negligence actions is found in Long-Russell v. Hampe, 2002 WY 16, 39 P.3d 1015 (Wyo.2002). The plaintiff in Hanpe claimed that her attorney was negligent when handling her divorce, which involved child custody issues. We were called upon to answer certified questions that required us to decide whether damages for emotional suffering could be awarded in a legal malpractice action where the basis for the claim was the attorney's negligence. We answered those questions in the negative. Hampe, ¶ 1.

[112] In reaching our decision in Hampe we set forth our case law regarding emotional damages as described above. Hampe, at ¶ 10. We then stated that we found the reasoning of the Minnesota Supreme Court consistent with our established law on the subject and adopted a Minnesota decision to govern in similar cases in Wyoming. Hampe, at ¶ 11 (adopting Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557 (Minn.1996)). In Lickteig, also a legal malpractice case, the Minnesota Supreme Court held that emotional distress damages may be an element of damages in only three cireumstances. First, the plaintiff may recover for the mental anguish accompanying a physical injury suffered as a result of another's negligence. Second, if the plaintiff as a result of another's negligence experiences emotional distress after actually being exposed to physical harm, he may recover for negligent infliction of emotional distress. Third, the plaintiff may recover where there has been a "direct invasion of the plaintiff's rights such as that constituting slander, libel, malicious prosecution, seduction, or other like willful, wanton, or malicious conduct." Hampe, ¶ 11 (quoting State Farm Mut. Auto. Ins. Co. v. Village of Isle, 265 Minn. 360, 122 N.W.2d 36, 41 (1963)).

[113] The Minnesota Supreme Court then stated, "as in other negligence actions, emotional distress damages are available in limited cireumstances. There must be a direct violation of the plaintiff's rights by willful, wanton or malicious conduct; mere negligence is not sufficient." Lickteig, 556 N.W.2d at 562. Following the recitation of the excerpt from Lickteig, we went on to conclude that "based solely on an allegation of negligence, a litigant is not entitled to present an emotional damages claim to a jury." Hampe, at ¶ 11. Based on the certified question before us it appears that the plaintiffs similarly do not meet any of the three instances in which we allow recovery for emotional distress damages. They have not alleged physical injury, exposure to physical harm, or any "willful, wanton, or mali-clous conduct."

[T 14] Additionally, the parties in Hampe and Lickteig had an attorney client relationship. A similar type of relationship exists between a patient and her doctor and hospital. Both types of claims arise from a relationship based on breach of contract and breach of a fiduciary duty. Hampe, ¶¶ 8-9. Hampe similarly contained elements of damage that resulted from a disturbance in the parent-child relationship. Therefore, Hampe appears at first glance to be controlling.

[115] However, an important distinction must be made between Hampe and the instant case. Factoring into our decision in Hampe was our concern for the issues surrounding child custody. In Hampe, we cited to a Colorado case for its discussion of the child custody issues. We stated, "[wlith specific regard to the claim relating to child custody, we view with favor the case McGee v. Hyatt Legal Services, Inc., 813 P.2d 754, 758-59 (Colo.App.1990), for the additional guidance it provides." Hampe, ¶ 13. We noted that court's concerns about

the impossibility of quantifying intangible injuries to the parent-child relationship, the effect recognition of damages would have on the district court's authority to regulate and supervise custody decisions which must turn on the best interests of the child, the certainty of some significant level of emotional disturbance in the dissolution of a marriage which includes a child custody component (especially one burdened with a high level of animosity), as well as the certainty that neither parent can reasonably expect full-time custody of the children because of the statutorily required liberal visitation with the non-custodial parent.

Hampe, ¶ 13. Therein lies the difference.

[116] In McGee the Colorado Supreme Court found that joint custody orders as opposed to sole custody orders do not constitute a compensable loss. McGee, 813 P.2d at 757-58 A close look at McGee reveals that the Colorado Supreme Court's reasons for denying recovery were not simply because the claim involved only intangible injuries which would be hard to quantify. The court also considered In re Marriage of Segel which recognized that such claims would circumvent and undermine the statutory scheme authorizing courts to regulate and supervise the custody of children whose parents are involved in dissolution proceedings. Id., at 758 (citing In re Marriage of Segel, 179 Cal.App.3d 602, 224 Cal.Rptr. 591 (1986)). While we recognize that the nature of the injuries claimed in this case is similarly intangible, the concerns that a court's authority will be undermined is completely absent.

[117] Furthermore, divorcee proceedings provide the parties with due process of law before the parent-child relationship is disrupted because each party is presented with notice and the opportunity to be heard by an independent third party. The final decision to disrupt the parent-child relationship rests with a judge charged with making such decisions in the best interests of the child. In the case now before us an independent third party did not review the merits of each party and then make an informed decision. The disruption in the parent-child relationship was allegedly due solely to defendant's negli-genee. Additionally, child custody orders are subject to modification in future proceedings. See Wyo. Stat. Ann. § 20-2-204 (LexisNexis 2003). Obviously we would never lightly dismiss or condone attorney negligence, but in a limited sense, some of the damage incurred due to attorney negligence in a case involving child custody may be mitigated by future modification.

[118] A last important distinction must be noted. As mentioned in Hampe, some level of emotional disturbance has to be expected in a divorce proceeding involving custody issues. Hampe, ¶ 13. The parties are aware of such a disturbance and can conceivably prepare to cope with the disturbance when they begin divoree proceedings. A parent leaving the hospital with a newborn child does not reasonably expect the same kind of disturbance. Additionally, in a divoree proceeding neither parent can reasonably expect, nor does he/she often get, full-time custody. The parent-child relationship is rarely completely severed in divorce proceedings. Each parent's relationship with the child, although altered, remains intact. The parent-child relationship in this case was completely severed.

[119] We, therefore, conclude that this case is not "similar" to Hampe and that Hampe did not speak directly to the issue now before us. We determine that the decisions preceding Hampe as cited above did not squarely address the issue either. Having never addressed a case with circumstances such as this one, we looked to other jurisdictions for similar cases involving babies switched at birth and emotional damages. Our research turned up three cases. Although the cases discussed the issue, for various reasons they did not generally provide an analysis that was particularly useful to our specific discussion. Wishard Memorial Hosp.v. Logwood, 512 N.E.2d 1126 (Ind.App.1987) (The court denied recovery for purely emotional damages resulting from the switched babies. However, the switch was only for a number of hours and was discovered before either infant left the hospital.); Twigg v. Hospital Dist. of Hardee County, Fla., 731 F.Supp. 469 (M.D.Fla.1990) (The court dismissed any claims "insofar as plaintiffs may be attempting to file a separate cause of action for psychic trauma alone." Id., at 472. The court provided no further analysis on the subject, however, because plaintiffs asserted that they were not seeking compensation for psychic trauma alone but as damages appended to other claims, and those claims were allowed to go forward.); De Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116 (1st Cir.1991) (The court allowed a grandfather to recover for his emotional damages resulting from one of his twin granddaughters being switched at birth. However, the defendant did not dispute that under Puerto Rico law the grandfather could bring an action for negligent infliction of emotional distress.).

[120] Appellants have argued for the application of an exception that would modify the restrictions placed on recovery for emotional damages without accompanying physical injury. We have previously shown that we are willing, in very limited cireum-stances, to overrule what was the common law at the time it was handed down but which has now become outdated. Nulle v. Gillette-Campbell County Joint Powers Fire Bd., 797 P.2d 1171, 1172-73 (Wyo.1990). However, like the Minnesota Supreme Court, we are not eager to expand the availability of damages for emotional distress. We continue to be concerned about the ramifications of expansion for the same reasons cited above. Nevertheless, our reluctance cannot result in the application of a rule that was not meant to govern this type of situation. Our primary concern is the burden overbroad liability for emotional damages would impose on our court system. See Gates, 719 P.2d at 197. Therefore, the availability of such damages must be limited to plaintiffs who can prove that emotional injury occurred under cireumstances tending to guarantee its authenticity. Lickteig, 556 N.W.2d at 560.

[121] As mentioned previously, many jurisdictions have in at least some fashion modified the traditional rule requiring actual or threatened physical impact. However, most jurisdictions still require proof of a physical manifestation of emotional distress. Boyles v. Kerr, 855 S.W.2d 593, 598-99 (Tex.1993) (collecting cases). Several jurisdictions have recognized a general right to recover for negligently inflicted emotional distress. Id., at 599. Some jurisdictions allow recovery where the claimant establishes the breach of some independent duty. Boyles, at 598-99 (citing Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992); Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 574 N.E.2d 602 (1991); Oswald v. LeGrand, 453 N.W.2d 634 (Iowa 1990); Clomon v. Monroe City Sch. Bd., 572 So.2d 571 (La.1990)). It is the independent duty exception to the general rule prohibiting recovery for strictly emotional damages that appellants urge us to apply.

[122] The Towa Supreme Court has set forth a good description of this exception. "An exception exists 'where the nature of the relationship between the parties is such that there arises a duty to exercise ordinary care to avoid causing emotional harm. " Lawrence v. Grinde, 534 N.W.2d 414, 421 (Iowa 1995) (quoting Oswald v. LeGrand, 453 N.W.2d at 639) This exception is applied in cireum-stances involving contractual relationships for services that carry with them deeply emotional responses in the event of breach. Lawrence, at 421. Towa has thus recognized the propriety of recovery of emotional distress in actions involving: 1) medical malpractice from negligent examination and treatment of a pregnant woman and her premature fetus; 2) a son when he saw the negligence of another cause injury to his mother; 3) negligent delivery of a telegram announcing the death of a loved one; and 4) negligent performance of a contract to provide funeral services. Lawrence, 534 N.W.2d at 421.

[123] Other courts have recognized similar exceptions and have allowed recovery for the negligent transmission of telegraph messages, especially those messages announcing death or indicating a potential for mental distress. Clomon v. Monroe City Sch.Bd., 572 So.2d at 583 (citing Graham v. Western Union Telegraph Co., 109 La. 1069, 34 So. 91 (1930); Russ v. Western Union Telegraph Co., 222 N.C. 504, 23 S.E.2d 681 (1943); Western Union Telegraph Co. v. Redding, 100 Fla. 495, 129 So. 743 (1930). Courts have also allowed similar recovery for the mishandling of corpses. Id. (citing Fortuna v. St. Bernard Memorial Gardens, Inc., 529 So.2d 883 (La.App.1988); Shelmire v. Linton, 343 So.2d 301 (La.App.1977); French v. Ochsner Clinic, 200 So.2d 371 (La.App.1967); Blanchard v. Brawley, 75 So.2d 891 (La.App.1954); Clark v. Smith, 494 S.W.2d 192 (Tex.Civ.App.1973); Allen v. Jones, 104 Cal.App.3d 207, 163 Cal.Rptr. 445 (1980); Torres v. State, 34 Misc.2d 488, 228 N.Y.S.2d 1005 (1962)).

[124] Oregon has recognized a similar exception but appears to have limited it to medical procedures. That state allows recovery "if the defendant care provider breached 'a specific duty to be aware of and guard against particular adverse psychological reactions or consequences to medical procedures." " Simons v. Beard, 188 Or.App. 370, 72 P.3d 96, 102 (2003) (miscarriage) (quoting Curtis v. MRI Imaging Servs. II, 327 Or. 9, 956 P.2d 960 (1998) (administering MRI)).

[125] Alaska similarly recognizes a "preexisting duty exception" to the physical injury rule. Kallstrom v. United States, 43 P.3d 162, 166 (Alaska 2002). Under this exception a plaintiff may recover when the parties stand in a contractual or fiduciary relationship and the nature of this relationship imposes a duty that would foreseeably result in emotional harm to the plaintiff. Chigmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995). The contract must generally be highly personal and laden with emotion. Id. The Alaska Supreme Court limits this rule by requiring that the emotional injury be serious or severe. Id., at 205.

[T26) We prefer Iowa's application of the independent duty exception because this expression is narrowly tailored and well reasoned. Under this exception recovery exists only in cireumstances involving contractual services that carry with them deeply emotional responses in the event of breach. There must be a close nexus between the negligent action at issue and extremely emotional cireumstances. Lawrence, 534 N.W.2d at 421. Whether this exception should be applied in Wyoming requires that we determine whether to extend a limited duty of care to those who suffer mental distress in the above-mentioned limited cireumstances. In making this determination we seek to balance the view that a negligent act should have some end to its legal consequences against the view that the injured party has the right to recover for all harm caused. Gates, 719 P.2d at 196. Key policy factors to be considered are:

(1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (8) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.

Gates, 719 P.2d at 196 (citing Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342 (1976)).

[127] First, we consider the foreseeability of harm to the plaintiff. As noted in Gates, this is a vague test that essentially results in the court setting a legal duty and then outlining the policy principles that urge us to recognize such a duty. However, it is clear that the independent duty exception is based on the principle of foreseeability. The exception is only applicable when there is a previous relationship between the parties, and this relationship is based on services that carry with them deeply emotional responses in the event of breach. Under such cireum-stances both parties are aware of the emotional aspects attending their relationship and are likewise aware of the potential for emotional damage. We can easily conclude that it is foreseeable that when two babies are switched at birth the parties involved will experience emotional distress when the error is discovered. As the Iowa Supreme Court said: "[T]he birth of a child involves a matter of life and death evoking such 'mental concern and solicitude' that the breach of a contract incident thereto 'will inevitably result in mental anguish, pain and suffering.! " Oswald, 453 N.W.2d at 639; see also Geibel v. United States, 667 F.Supp. 215, 220 (W.D.Pa.1987); Taylor v. Baptist Medical Center, Inc., 400 S.2d 369, 374 (Ala.1981). We have characterized the parent-child relationship as one of the "earliest and most hallowed of the ties that bind humanity." Matter of Adoption of Voss, 550 P.2d 481, 485 (Wyo.1976).

[128] Second, we consider the closeness between the defendant's conduct and the injury suffered. In instances where the independent duty exception is applied there is a closeness between the defendant's conduct and the injury because the exception is limited to instances where the parties had some sort of relationship. The very nature of the exception requires that the defendant's conduct be sufficiently close to the injury suffered. In such cases, there is a direct link between the injured party and the defendant. Although the holding in Daily was limited to automobile collisions, in that decision we recognized that a difference exists between a claim asserted by a "bystander" and a claim asserted by a direct victim of a traditional completed tort. Daily, 906 P.2d at 1045. The degree of closeness between the defendant's conduct and the injury suffered is one such distinction. Cases involving babies that have been switched at the hospital present the direct victims of a tort. The concerns related to the closeness of "bystanders" are thus not present. Recovery in such instances would be predicated upon a traditional, completed tort.

[129] Third, we must be concerned with whether there is some certainty that the plaintiff suffered an injury. This element relates to the concern noted by the Lickteig court that the injury must occur under circumstances tending to guarantee its genuineness. Lickteig, 556 N.W.2d at 560. The limited nature of the independent duty exception alleviates some of this concern as it applies only when the relationship carries deeply emotional responses in the event of breach. In fact, the one thing common to the limited cireumstances in which the exception is applied is that the cireumstances present a great likelihood of genuine mental distress. Clomon v. Monroe City Sch.Bd., 572 So.2d at 583. In this particular case, a mother and daughter learned after forty-three years that they had been separated because two babies had been switched at birth. Little doubt remains that the parties involved in such an occurrence will suffer emotional distress. Indeed, the parties have lost the affection and close companionship that attends the parent-child relationship. The parties have bonded with other persons and recognized those persons as their own family only to shockingly discover that they are not related by blood, as they had once believed.

[¥30] Fourth, we consider the moral blame attached to the defendant's conduct. This factor is used to determine whether the defendant is morally culpable before imposing liability. Moral blame generally results from situations in which the defendant had direct control over establishing and ensuring proper procedures to avoid the harm caused or where the defendant is the party best in the position to prevent the injury. See generally Duncan v. Afton, Inc., 991 P.2d 739, 745 (Wyo.1999). Traditionally, the reason for denying recovery for purely mental disturbances relied upon the judgment that a defendant who is merely negligent is not so blameworthy that he should be required to compensate for mental disturbances. However, we think moral blame does attach to the defendant's conduct when babies are switched at the hospital. The hospital has sole control over the babies and its identification procedures, and it is the hospital that is in the best position to prevent such an injury. We, therefore, think that moral blame must attach to such conduct.

[131] The fifth and sixth factors, the policy in preventing future harm and the burden on the defendant in this instance, can be discussed together. We find it imperative that hospitals have procedures to ensure that newborn children are given to the proper parent. The need to prevent future harm is completely obvious and an extended discussion is unnecessary. Furthermore, the burden placed upon the defendant to avoid such harm in the future would not be so great. Procedures for the identification and safety of newborn babies are available and can easily be used.

[132] Seventh, we must determine the consequence to the community and the court system. This factor has generally been thought of as weighing the negative aspects of creating a new cause of action. As noted previously, we are concerned that additional liability may impose a great burden on our court system. However, we think the independent duty exception, as described by the Towa Supreme Court, is sufficiently limited in scope so as to avoid an overwhelming burden. As noted in Gates, we suspect that recovery will not occur often because of the limitations placed on the action. Gates, 719 P.2d at 198. The instances in which this exception is available are initially limited by the exception itself because there must be a relationship for services that carries with it deeply emotional responses in the event of a breach. Lawrence, 534 N.W.2d at 421.

[133] An additional limitation on the independent duty exception as recognized by Towa is the requirement that the distress inflicted be "so severe that no reasonable man could be expected to endure it." Lawrence, 534 N.W.2d at 421 (citing Restatement, Second, Torts). This same limitation exists on intentional infliction of emotional distress (IIED) as recognized in Wyoming, which comes from Restatement, Second, Torts § 46. Leithead, 721 P.2d at 1065; see also Kanzler v. Renner, 937 P.2d 1337, 1341 (Wyo.1997). Claims of IED are made when "[oIne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another." Leithead, at 1065 (quoting Restatement, supra, § 46(1)). Outrageous conduct is defined as conduct which goes " 'beyond all possible bounds of decency' and which is 'regarded as atrocious, and utterly intolerable in a civilized community.' " Kanzler, at 1341 (quoting Restatement, § 46 emt d). Nevertheless, IIED is additionally limited by the requirement of severe emotional distress. The reason given for this limitation is "[clomplete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people." Leithead, 721 P.2d at 1067 (quoting Restatement, supra, emt j.) Therefore, the law only intervenes where the distress inflicted is "so severe that no reasonable man could be expected to endure it." Id.

[134] The independent duty exception requires only negligence, not that the defendant intentionally or recklessly caused the emotional harm. The additional requirement that the defendant's conduct be extreme and outrageous is similarly absent. While the independent duty exception is applicable when a contractual relationship that carries with it deeply emotional responses in the event of breach exists and breaching the contract therefore seems to carry some element of outrageousness, it is to a lesser degree. It is thus entirely appropriate and perhaps more essential that the same limitation of severity apply when recognizing the independent duty exception.

[T85] The recognized court and jury functions for the question of severity are likewise applicable. "It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed." Kanzler, at 1341 (quoting Restatement, supra, emt. j). The intensity and the duration of the distress are factors to be considered in determining its severity. Leithead, at 1067 (quoting emt j). Thus, the determination will have to be made that the emotional injury is severe on a case by case basis.

[T 36] Under this seventh factor, we additionally recognize that the parent-child relationship is intangible and it will likely be hard to value. However, such a valuation would be no harder than valuing the loss of society, care, and attention in a wrongful death action. "Recovery of damages for mental injury is not novel to Wyoming jurisprudence." Daily, 906 P.2d at 1044. Similarly intangible and inherently difficult to measure are pain and suffering damages, but they are sought and awarded in nearly all tort actions. We also acknowledge that tort damages are compensatory in nature and seek to put the plaintiff in the same position he would have been in but for the defendant's negligence. While a monetary award will not restore intangible relationships, it is currently the best solution our system offers. Hancey v. United States, 967 F.Supp. 443, 445 (D.Colo.1997). We also recognize that legal consequences from wrongs must be limited to some controllable degree, but we trust the jury to assess reasonable damages. The courts can control juries that are ruled by passion or prejudice. Gates, 719 P.2d at 200; see also Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1289 (Wyo.1983) (the court has duty to grant remitter or additur where a verdiet shocks the conscience of the court); Booth v. Hackney, 516 P.2d 180, 181 (Wyo.1978) (verdict can be set aside when it appears to be so excessive that it denotes passion, prejudice, bias or some erroneous ba-sig).

[137] The procedures by which courts can control juries combined with the limited nature of the exception and the requirement of severe emotional distress convinces us that the negative aspects of recognizing the independent duty exception are reasonably limited. Therefore, under the seventh factor we determine that our courts will not be unduly burdened by this exception to the general rules limiting emotional damages.

[138] The eighth and final factor is the availability, cost, and prevalence of insurance for the risk involved. Aside from the current issues surrounding the cost of medical malpractice insurance, we note that insurance is quite prevalent. Hospitals are insured for all types of losses related to the birth of a child. Although we have said this previously, because of the current issues surrounding medical malpractice insurance it bears repeating: this exception is extremely limited. The exception only applies when there is a contract for services that carries deeply emotional responses in the event of breach. Although some level of emotion attends every situation involving one's health, we do not anticipate that every area of healthcare will carry the deeply emotional responses sufficient to sustain this exception.

[139] After applying the balancing of factors test "it is difficult for the court, on the basis of natural justice, to reach the conclusion that this type of action will not lie. Human tendencies and sympathies suggest otherwise." Nulle, 797 P.2d at 1174 (quoting Hoffman v. Dautel, 189 Kan. 165, 368 P.2d 57, 59 (1962)). Accordingly, we hold that in Wyoming, in the limited cireumstances where a contractual relationship exists for services that carry with them deeply emotional responses in the event of breach, there arises a duty to exercise ordinary care to avoid causing emotional harm. However, as can be seen by our discussion, this exception is extremely limited. We persist in seeking to assure that our already burdened court system will not be additionally burdened by an overly broad liability for emotional damages.s

CONCLUSION

[140] For the reasons fully explained above we answer the certified question in the affirmative. A mother and daughter, who were separated for forty-three years because the hospital switched two newborn babies at birth, ean maintain a negligence action in which the only alleged damages are great emotional pain, humiliation, anxiety, grief, and expenses for psychological counseling.

PRICE, District Judge,

dissenting.

[141] I respectfully dissent.

[T42] The majority again expands the traditional rule disallowing recovery for mental or emotional injury only when such injury is linked to an actual or threatened physical impact. Although the majority says one thing, it clearly does the other. It claims, "we are not eager to expand the availability of damages for emotional distress." 120. Claiming that, "[tTherefore, the availability of such damages must be limited to plaintiffs who can prove that emotional injury occurred under cireumstances tending to guarantee its authenticity," it cites Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557 (Minn.1996). Id. An examination of this case reveals that the Minnesota court limited this kind of recovery. "There must be a direct violation of the plaintiff's rights by willful, wanton or malicious conduct; mere negligence is not sufficient" Lickteig, at 562.

[143] By adopting the Iowa independent duty exception, the majority fails in its effort and stated concern: "Our primary concern is the burden overbroad liability for emotional damages would impose on our court system." 120. The majority then states:

The recognized court and jury functions for the question of severity are likewise applicable. "It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed." Kanzler, at 1341 (quoting Restatement, supra, erat. J). The intensity and the duration of the distress are factors to be considered in determining its severity. Leithead, at 1067 (quoting emt j). [11 85.]

[1144] This certainly opens the door for a number of cases to be considered by the trial courts. As one commentator has stated:

It is difficult to imagine how a set of rules could be developed and applied on a case-by-case basis to distinguish severe from nonsevere emotional harm. Severity is not an either/or proposition; it is rather a matter of degree. Thus, any attempt to formulate a general rule would almost inevitably result in a threshold requirement of severity so high that only a handful would meet it, or so low that it would be an ineffective sereen. A middle-ground rule would be doomed, for it would call upon courts to distinguish between large numbers of cases factually too similar to warrant different treatment. Such a rule would, of course, be arbitrary in its application.

Richard N. Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm-A Comment on the Nature of Arbitrary Rules, 34 U.Fla.L.Rev. 477, 511 (1982), cited in Boyles v. Kerr, 855 S.W.2d 593, 600 (Tex.1993).

[145] It is the expansion of this holding to many medical malpractice cases that concerns me. In the current times of medical malpractice issues, insurance and possible resulting loss of doctors in Wyoming, I predict this case will add fuel to the fire. After all, legal malpractice does not give rise to a claim for emotional distress but medical malpractice will. Long-Russell v. Hampe, 2002 WY 16, 39 P.3d 1015 (Wyo.2002). Even though the majority tries to limit this expansion, I predict it will not:

Accordingly, we hold that in Wyoming, in the limited cireumstances where a contractual relationship exists for services that carry with them deeply emotional responses in the event of breach, there arises a duty to exercise ordinary care to avoid causing emotional harm. However, as can be seen by our discussion, this exception is extremely limited. We persist in seeking to assure that our already burdened court system will not be additionally burdened by an overly broad liability for emotional damages. [1 39.]

[146] As I see it differently, I dissent and would answer the certified question in the negative.

      . Citing the following cases, Taylor v. Baptist Medical Center, Inc., 400 So.2d 369, 374 (Ala.1981); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180, 1184 (1978); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509, 519 (1970); Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282 (Me.1987); Bass v. Nooney Co., 646 S.W.2d 765, 772 (Mo. 1983); Johnson v. Supersave Markets, Inc., 211 Mont. 465, 686 P.2d 209, 213 (1984); Johnson v. Ruark Obstetrics and Gynecology Assoc., 327 N.C. 283, 395 S.E.2d 85 (1990); Schultz v. Barberton Glass Co., 4 Ohio St.3d 131, 447 N.E.2d 109, 113 (1983); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 679 (1979).

      . We note that we cited to the Lawrence case in Hampe, at ¶ 12. However, the purpose for which we cited to it was the general proposition cited by Lawrence that the majority view is that emotional distress is not a reasonably foreseeable consequence of legal malpractice. See Lawrence, 534 N.W.2d at 422.

      . We seek to clarify that this statement is in no way intended to indicate a retreat from the holding that mental suffering is not a compensable damage under the wrongful death statute. See Knowles v. Corkill, 2002 WY 119, 51 P.3d 859 (Wyo.2002).