I agree that the office of hearing examiners had no jurisdiction to appoint an attorney for Manning. Indeed, that is the point of my dissenting opinion in Painter v. State ex rel.Wyoming Worker's Compensation Div., 931 P.2d 953, 956 (Wyo. 1997). I am still of the persuasion that the office of hearing examiners lacks jurisdiction to appoint counsel in the absence of a request by an interested party and the referral by the Division for a contested case hearing. Clearly, this instance is outside the authority of the office of hearing examiners to appoint an attorney.
I dissent from that portion of the majority opinion that reverses the order of the district court denying Manning's attorney fees that were incurred in the contested case proceeding on the issue of attorney fees. I would affirm the district court with respect to the disallowance of these attorney fees. The language in the applicable statute, WYO. STAT. § 27-14-602(d) (1991) is quite clear:
No fee shall be awarded in any case in which the hearing examiner determines the claim to be frivolous and without legal or factual justification.
If the hearing examiner had no jurisdiction to award attorney fees on the rule-out consultation, the claim that was heard had to be "frivolous and without legal * * * justification." The award of attorney fees for the contest of the initial claim for attorney fees *Page 875 was an abuse of discretion and action contrary to law by the hearing examiner. I would hold that there is no necessity to remand the case to the district court because its ruling on the issue of attorney fees was correct.
The language of Wyo. Stat. § 27-14-615 (Supp. 1996) affords the district court discretion with respect to the award of attorney fees, and I do not see how this Court could find an abuse of discretion if the district court decided not to award any fee. I suppose this court also will award attorney fees for the appeal. The result will be that in an instance in which there was no claim filed by an employee and the office of hearing examiners had no jurisdiction to appoint an attorney, the consolidated Wyoming Worker's Compensation account will be mulcted in the amount of $112.34 plus a possible amount of $173.78 plus whatever this court awards for the appeal.
I believe that the majority resolution incorporates sophistry when it suggests that the statute was significantly amended between the time of Manning's injury and the law in effect forPainter. I can find no change in the pertinent and, I agree, critical language in WYO. STAT. § 27-14-602(d) that occurred between the date of Manning's injury and the date of the injury involved in Painter. It follows that either this case is wrong in holding that the hearing examiner had no jurisdiction to award attorney fees with respect to the rule-out consultation, orPainter is wrong in holding that the hearing examiner did have jurisdiction. Whether a claim was filed or the division had issued a final determination does not impact the jurisdiction of the hearing examiner in any logical fashion.
I reiterate what I argued in Painter:
An administrative agency has only the power granted to it by statute, and the justification for the exercise of any authority by the agency must be found in the statutes. E.g., Tri County Telephone Assoc., Inc. v. Wyoming Public Service Comm'n, 910 P.2d 1359 (Wyo. 1996); Kerr-McGee, Corp. v. Wyoming Oil Gas Conservation Comm'n, 903 P.2d 537, 541 (Wyo. 1995); Union Pacific Resources Co. v. State, 839 P.2d 356 (Wyo. 1992); Jackson v. State ex rel. Workers' Comp. Div., 786 P.2d 874 (Wyo. 1990). The jurisprudential principle applicable in this case was stated clearly by the court in LoSasso v. Braun, 386 P.2d 630, 631 (Wyo. 1963) (citations omitted):Painter, 931 P.2d at 958.If the legislature did in fact have such an intention, it failed to express it, and of course, we could not if we would act for the legislature by adding an exception which is clearly omitted. Such action would be in violation of the general rule that courts cannot supply omissions in a statute and will not read into a statute exceptions not made by the legislature. * * *
As stated in State ex rel. Morrison v. Anway, 87 Ariz. 206, 349 P.2d 774, 776, it is a universal rule that courts will not enlarge, stretch, expand or extend a statute to matters not falling within its express provisions.
That is exactly what the court has done in the majority opinion. The decision enlarges, stretches, expands and extends the statute to approve the award of attorney fees that is not justified by the express provisions of the statute. It has supplied a perceived omission in the statute, by adding to the authority of the hearing examiner beyond that provided by the statute. It is bad jurisprudence, and my experience teaches me that normally bad jurisprudence results in bad law. The decision of the district court should be affirmed.
The rule now appears to be that the office of hearing examiners can appoint an attorney whenever a claim is filed with the Wyoming Worker's Compensation Division whether a contested case proceeding ever is initiated or not. I cannot read the statute to encompass such a legislative intent, but the only recourse of the Division now must be to seek specific legislation setting forth when the office of hearing examiners has authority to appoint an attorney in worker's compensation matters.
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