Worker's Compensation Claim of Decker v. State Ex Rel. Wyoming Medical Commission

KITE, J.,

dissenting, in which VOIGT, C.J., joins.

[¶ 37] I dissent from the majority opinion because I believe Wyoming’s Public Meetings Act, Wyo. Stat. Ann. § 16-4-401, et seq. (LexisNexis 2007), applies to the deliberations of Medical Commission panels and the panel in this case violated the law when it closed its deliberations to the public. The Public Meetings Act requires:

(a) All meetings of the governing body of an agency are public meetings, open to the public at all times, except as otherwise provided. No action of a governing body of an agency shall be taken except during a public meeting following notice of the meeting in accordance with this act. Action taken at a meeting not in conformity with this act is null and void and not merely voidable.

Section 16^f-403(a). The following definitions help delineate the scope of the Public Meetings Act:

(i) “Action” means the transaction of official business of an agency including a collective decision of a governing body, a *123collective commitment or promise by a governing body to make a positive or negative decision, or an actual vote by a governing body upon a motion, proposal, resolution, regulation, rule, order or ordinance;
(ii) “Agency” means any authority, bureau, board, commission, committee, or su-bagency of the state, a county, a municipality or other political subdivision which is created by or pursuant to the Wyoming constitution, statute or ordinance, other than the state legislature and the judiciary;
(iii) “Meeting” means an assembly of at least a quorum of the governing body of an agency which has been called by proper authority of the agency for the purpose of discussion, deliberation, presentation of information or taking action regarding public business[.]

Section 16-4-402(a). The majority opinion concludes that the Public Meetings Act does not apply to deliberations of the Medical Commission panels because an individual panel is not an “agency.”

[¶ 38] In order to determine whether Medical Commission panels fall within the definition of “agency” for application of the Public Meetings Act, we look to the statutes pertaining to the Medical Commission. The Medical Commission exists by authority of the legislature, and its members are appointed by the governor. Wyo. Stat. Ann. § 27-14-616 (LexisNexis 2007). The Medical Commission is authorized to promulgate its own rules and regulations under the Administrative Procedure Act. Id. See also, § 16-3-102; Rules and Regulations of the Medical Commission § 1 (available at http://soswy. state.wy.us/Rules/RULES/5036.pdf).

[¶ 39] Section 27-14-616(b)(iv) states that the duties of the Medical Commission shall include:

(iv) To furnish three (3) members of the commission to serve as a medical hearing panel to hear cases referred for hearing. The division shall refer medically contested cases to the commission for hearing by a medical hearing panel- Following referral by the division, the hearing examiner or medical hearing panel shall have jurisdiction to hear and decide all issues related to the written notice of objection filed pursuant to W.S. 27-14-601(k). Different medical hearing panels with different membership may be selected to hear different cases, but a panel may hear more than one (1) case. Individual medical hearing panels shall be selected by the executive secretary under the supervision and guidance of the chairman of the medical commission. At least one (1) member of each panel shall be a physician. One (1) member shall be designated by the executive secretary to serve as chairman of the panel. When hearing a medically contested ease, the panel shall serve as the hearing examiner and shall have exclusive jurisdiction to make the final administrative determination of the validity and amount of compensation payable under this act.

[¶ 40] The Medical Commission is, therefore, permitted to assemble panels to hear individual medically contested worker’s compensation cases. In non-medically contested eases, a hearing examiner from the Office of Administrative Hearings, which was also created by statute, hears and decides the case. Wyo. Stat. Ann. §§ 9-2-2201, 27-14-602 (LexisNexis 2007). The Medical Commission panels have the same authority as hearing examiners to “hear and decide all issues” raised in the case. Considering the plain language of the relevant statutes in the context of the entire scheme of worker’s compensation contested cases, the Medical Commission panels clearly fall within the definition of an agency under § 16-4-402(a)(ii). Although individual panels are selected for certain cases and then disbanded, when a panel is performing its statutory function, there is simply no question that it is an “authority, bureau, board, commission, committee, or subagency of the state.” Id.

[¶41] Moreover, the majority opinion is internally inconsistent. The opinion concludes that the Public Meetings Act does not apply to the Medical Commission panel because it is not an agency and, yet, the opinion reviews the panel’s decision by applying Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2007) of the Wyoming Administrative Procedures Act. Section 16-3-114(a) articulates the method by which administrative agency decisions are judicially reviewed:

*124(a) Subject to the requirement that administrative remedies be exhausted and in the absence of any statutory or common-law provision precluding or limiting judicial review, any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction, or any person affected in fact by a rule adopted by an agency, is entitled to judicial review in the district court....

(emphasis added). The judicial review provision of § 16-3-114(a) applies only to agency action. If the Medical Commission panel’s decision was not an agency action, as the majority opinion concludes, there is no basis for judicial review of that decision under the Administrative Procedures Act.

[¶42] A determination that the medical panel is an agency does not completely determine whether the Public Meetings Act applies to the deliberations of the panel. The Medical Commission claims that the panel’s deliberations were exempt from the requirements of the Public Meetings Act in that they did not occur during a “meeting” as defined by § 16—4—402(a)(iii) because the panel does not make up a “quorum of the governing body of an agency.” Id.

[¶ 43] The Medical Commission consists of 11 members and up to 11 “associate members.” Section 27-14-616(a), (b). The function of associate members is limited to service on medical review panels. Section 27-14—616(b). Although the associate members do not participate in the other business of the Medical Commission, they do have complete authority to decide medically contested cases. Section 27-14-616(b)(iv).

[¶44] A quorum is “the number of the members of an organized body of persons ... that when duly assembled is legally competent to transact business in the absence of the other members.” Webster’s Third New Int'l Dictionary 1868 (1993). Issuing decisions on medically contested cases is the statutorily enumerated “business” of the Medical Commission. Section 27-14-616(b)(iv). A panel of three members of the Medical Commission is authorized by statute to transact that business, and is therefore legally competent to do so. Id. Consequently, a panel of three members of the Medical Commission is a quorum of the governing body of an agency for purposes of application of the Public Meetings Act.

[¶ 45] The Medical Commission also contends that it is entitled to meet to deliberate in private under the executive session exception in § 16-4-405(a)(ix):

(a) A governing body of an agency may hold executive sessions not open to the public:
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(ix) To consider or receive any information classified as confidential by law[.]

[¶ 46] Initially, it must be noted that the record does not indicate the panel called an executive session. Section 16-4-405(c) provides: “Unless a different procedure or vote is otherwise specified by law, an executive session may be held only pursuant to a motion that is duly seconded and carried by majority vote of the members of the governing body in attendance when the motion is made.” Section 16-4-405(b) requires that “[m]inutes shall be maintained of any executive session.” The record does not reflect that either of those requirements was fulfilled here.

[¶47] Moreover, the matter at issue in this case did not qualify for consideration in executive session. The Medical Commission directs us to Wyo. Stat. Ann. § 27-14-805 (LexisNexis 2007) for authority that the information discussed at Medical Commission panel hearings is confidential, and thus may be debated in an executive session. Section 27-14-805(a) states:

Except as otherwise provided by this act, information obtained from any employer or covered employee pursuant to reporting requirements under this act or investigations conducted under W.S. 27-14-803 shall not be disclosed in a manner which reveals the identity of the employer or employee except to the employer, the employee, legal counsel for an employer, legal counsel for an employee or in situations necessary for the division to enforce any of the provisions of this act.

[¶ 48] The statute prohibits the Workers’ Compensation Division (Division) from dis*125closing identifiable information obtained “pursuant to reporting requirements under this act or investigations conducted under W.S. 27-14-803.” Id. The Division is permitted by statute to collect sensitive personal information in the interests of public safety, and the section prohibiting disclosure is an appropriate directive to protect that information. Wyo. Stat. Ann. § 27-14-501 (Lexis-Nexis 2007); Wyo. Stat. Ann. § 27-14-506 (LexisNexis 2007); Wyo. Stat. Ann. § 27-14-803 (LexisNexis 2007).

[¶ 49] Information gathered by the Division pursuant to reporting requirements is distinguishable from the information before the Medical Commission because the employer and employee are required to report it. In contrast, information presented to the Medical Commission in a contested case hearing is presented pursuant to a claim made by the employee. In choosing to avail himself of the system, the employee waives his right to maintain the privilege as to information relevant to the resolution of his case. See Wardell v. McMillan, 844 P.2d 1052, 1066 (Wyo.1992) (“When a patient places his physical or mental condition into contest, the physician-patient privilege is waived to the extent that it is relevant to the controversy.”) and Frias v. State, 722 P.2d 135, 140 (Wyo.1986) (“Waiver also occurs when a party voluntarily inserts the issue of his physical condition into the litigation.”). Section 27-14-805 prevents the disclosure of personal information gathered by the Division, not information presented by a claimant in a contested ease proceeding. Applying the Medical Commission’s logic to the panels would allow closure, not just of the deliberations, but of the hearings and all other proceedings, as the information contained in those proceedings is the same as that discussed in deliberations. That result is not consistent with the Medical Commission’s practice and nothing in the statutes indicates it is what the legislature intended. Therefore, I would conclude the non-disclosure requirement of § 27-14-805 does not allow deliberations by the Medical Commission’s hearing panels to be held in executive session.4

[¶ 50] In summary, I would hold that the Medical Commission panels fit the statutory definition of “agency” under § 16-4-402(a)(ii). Deliberations of a panel constitute a “meeting” under § 16-4-402(a)(iii) where “action” is taken. Section 16-4^t02(a)(i). Therefore, the deliberations of the Medical Commission’s hearing panels must be held in conformity with the requirements of the Public Meetings Act. Action taken in contravention of the Public Meetings Act is void. Section 16-4-403. Because the hearing panel violated the law by deliberating in private, its order is void and we have nothing to review. I would, therefore, remand this case to the Medical Commission for consideration using proper procedures under the Public Meetings Act.

. The Medical Commission also cites to federal case law indicating that the deliberative process should be closed to the public to allow free and open debate among the panel members. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Casad v. United States Dep't of Health and Human Serv’s, 301 F.3d 1247 (10th Cir.2002). Those cases are not persuasive authority on the issue presented here because they concerned the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, not the Wyoming Public Meetings Act. Moreover, the Public Meetings Act does not contain provisions comparable to those discussed in the cited cases.