text:
This opinion has been revised. Following our grant of a motion for reconsideration by Waste Management, Inc. (Waste Management), we issue this opinion. Waste Management asserted that our initial opinion, Waste Management of Wis., Inc. v. DNR, 126 Wis.2d 76, 376 N.W.2d 345 (1985), was predicated on a factual error. The error was our conclusion that the Department of Natural Resources (DNR) had not issued an initial license to Waste Management to operate a waste disposal site at its "Omega Hills" location in 1978. Because we conclude that the initial opinion was affected by that error, we withdraw that opinion.
The record, as originally presented to this court as well as to all courts below, did not contain any license to Waste Management to operate a waste disposal site at its Omega Hills location in 1978, and we therefore predicated our opinion on our conclusion that the DNR had not issued a license to Waste Management for that site. After the filing of our initial opinion, Waste Management asserted in its motion for reconsideration that the DNR granted it a license to operate the site in 1978 and annually renewed the license. In response to the motion for reconsideration, the DNR submitted copies of a license issued in 1978 and of a subsequent license. Waste Management claims that it did not submit a copy of the license because actions of the circuit courts denied it the opportunity to develop a full record. The DNR claims that it did not include a copy of the license because it felt that licensing was not critical to resolution of the issues in these cases. For whatever reasons, the license did not appear in the record prior to the filing of our opinion. We now accept the DNR's acknowledgment that a license did exist and that the parties failed to include it in the record.
Waste Management appeals decisions of three circuit courts, all of which held that Waste Management has no due process or statutory right to a hearing before the DNR at which to challenge certain actions by the DNR involving two solid waste disposal sites which Waste Management owns. In the first case, the DNR denied Waste Management's request for a modification of a "feasibility determination" for a site known as the "Metro" site. In the other cases, the DNR imposed certain requirements on Waste Management's "plan of operation" for a site known as the Omega Hills site. In all three cases, the DNR denied Waste Management's subsequent requests for hearings on its actions.
Waste Management also appeals the courts' holdings that the DNR's actions were not judicially reviewable and that the DNR's actions were not arbitrary or capricious.
Because we conclude that Waste Management does not have an interest in its Metro feasibility determination which receives protection from the due process clause of the fourteenth amendment, and because we conclude that neither ch. 144, Stats., nor sec. 227.064 gives Waste Management a right to a hearing before the agency on a requested modification, we hold that Waste Management does not have either a constitutional or statutory right to a hearing before the DNR to challenge the DNR's denial of its request for a modification of the Metro feasibility determination.
With regard to the DNR's modifications to the plan of operation for the Omega Hills site, we hold that Waste Management's interest in its approved plan of operation does not merit due process protection, but its interest in its license to operate the Omega Hills site does merit due process protection. To the extent that the DNR's modifications constitute a deprivation of Waste Management's interest in its license, Waste Management's correspondence to the DNR in which it communicates the merit of its position and its statutory right to judicial review of the decision of the DNR under sec. 227.15, Stats., satisfies the due process requirements of notice and an opportunity to be heard. Because we hold that Waste Management has a right to judicial review under sec. 227.15, we also hold that the DNR must issue its decisions to modify requirements in conformance with the requirements of sec. 227.10.
Inasmuch as these cases involve the statutory screening process which results in licensing of solid and hazardous waste disposal sites, we begin with an overview of that statutory process. The screening process established by sec. 144.44, Stats., consists of two distinct phases. In the first phase, the DNR reviews plans for construction and operation of waste disposal sites submitted by persons seeking to license new facilities. One key requirement in the first phase is that the license applicant submit a feasibility report to the DNR and obtain a decision from the DNR that its site is feasible for the proposed use; that decision is known as the "site feasibility determination." Section 144.44(2). In some circumstances the DNR must require an applicant for a license to prepare an environmental impact statement or to submit its plan to a public hearing. Section 144.44(1)-(4). When the DNR issues a favorable feasibility determination, the applicant is then qualified to submit a "plan of operation," which the DNR must approve, disapprove, or approve with conditions within 90 days of submission. Section 144.44(3)(c). Although sec. 144.44(3)(c) does not use the words "conditional approval," it states in part that "[a]n approval may be conditioned upon any requirements necessary to comply with the standards." The standards to which the section refers are those ". . . established under s. 144.435 or, in the case of hazardous waste treatment, . . . with the rules and standards established under s. 144.62." Section 144.44(3)(c).
In the second phase, which begins after approval of a plan of operation, an applicant with an approved plan of operation may construct a facility according to the plan up to a specified design capacity. Section 144.44(3)(d), Stats. The DNR, however, retains authority to make modifications to the plan of operation under certain specified circumstances. Section 144.44(3)(d). The DNR's approval of a plan of operation, therefore, does not automatically entitle the applicant to be licensed. Section 144.44(3)-(4). The applicant must construct the facility in accordance with the plan before the DNR will issue the initial license for the facility. Section 144.44(4)(d). The issuance of the license indicates that the applicant has satisfied all conditions relating to construction. Nonetheless, sec. 144.44(4)(a), authorizes the DNR to deny, suspend or revoke an operating license based on grievous or continuous failure of an operator to comply with the plan of operation.
The interests of applicants for an operator's license also are affected by sec. 227.064, Stats., which requires an agency to hold hearings on agency actions in some circumstances, and sec. 227.15, which provides for judicial review of agency actions which adversely affect the substantial interests of any person.
In the Metro site case, No. 84-600, Waste Management began the screening process in 1976. On June 4, 1980, the DNR issued a favorable feasibility determination for the proposed site. On July 18, 1980, Waste Management orally requested that the DNR modify the feasibility determination to permit it to remove an additional thirty feet of clay soils from the site to be used as cover material. Removal of the soils would have lowered the base grade of the area, approximately 40 acres in size, by an additional thirty feet. According to Waste Management, its request was based on new information which indicated that the base grade could be lowered without violating criteria on which the DNR had based its feasibility determination.
The DNR denied the request on August 13, 1980. It took the position that the request was inconsistent with Waste Management's original proposal, had not been presented to the public in an environmental impact statement or at a hearing and would be an expansion of the site under ch. 377, Stats., and NR 180, Wisconsin Administrative Code. The DNR contended that a modification of this magnitude would require an entirely new feasibility determination.
By letter on September 12, 1980, Waste Management requested a contested case hearing on the denial of its request. On September 23, 1980, the DNR denied the hearing request.
Waste Management petitioned the circuit court of Milwaukee county for judicial review of the DNR's denial of its requests. It asked the court to nullify the DNR's requirement for a full review prior to a modification of the feasibility determination and to order the DNR to make the requested change or, alternatively, to order the DNR to grant it a hearing on its request. The circuit court denied Waste Management's petition.
Cases Nos. 83-2356 and 83-2446 involve the Omega Hills site. In these cases the DNR already had issued a favorable feasibility determination. The controversy centers on the plan of operation which Waste Management submitted to the DNR and to which the DNR formally responded on June 15, 1978. In that response, the DNR "tentatively" approved the plan of operation, subject to Waste Management's fulfillment of a number of specific requirements.
In a letter dated July 7, 1978, Waste Management informed the DNR that it did not agree with all the recommendations detailed in the June 15, 1978, letter of approval. In the ensuing months and years, the contested requirements became the subject of considerable dialogue between the DNR and Waste Management. Nonetheless, on July 21, 1978, the DNR issued a license to Waste Management, authorizing Waste Management to accept waste at the Omega Hills site. The license was conditioned upon Waste Management's compliance with the provisions of any plan approval and subsequent modifications thereof.
After further dialogue with Waste Management and further evaluation of the conditions at the Omega Hills site, the DNR issued letters to Waste Management on September 10, 1980, April 6 and 30, 1981, and March 23, 1983, changing some recommendations contained in the plan approval and affirming others. Waste Management disagreed with some or all of the changes recommended by the DNR in these four letters. At each such impasse, Waste Management filed petitions in the circuit court of Milwaukee county for judicial review of the DNR's authority to impose the requirements, and of the DNR's subsequent denials of hearings on its actions. The circuit courts denied Waste Management's petitions.
On Waste Management's appeal, all three cases were consolidated. The DNR petitioned to bypass review by the court of appeals and we granted the petition.
1) Does Waste Management have a constitutional right to a hearing before the DNR on either: a) the DNR's refusal to grant Waste Management's requested modification to its feasibility determination for the Metro site; or, b) the DNR's modifications to the requirements of the approved plan of operation for the Omega Hills site with which Waste Management disagrees?
2) Do these actions by the DNR entitle Waste Management to a hearing pursuant to sec. 144.44(3), Stats.?
3) Do these actions by the DNR entitle Waste Management to a contested case hearing pursuant to sec. 227.064, Stats.?
4) Are these DNR actions judicially reviewable pursuant to sec. 227.15, Stats., and, if so, is the DNR required to state such actions in conformance with sec. 227.10?
Issue 1: Whether Waste Management has a constitutional right to a hearing before the DNR on the DNR's actions.
Waste Management asserts that secs. 144.44(3)(c) and (d), Stats. 1979, confer on it interests in its feasibility determination for the Metro site and in its approved plan of operation and license for the Omega Hills site which are protected by the due process clause of the fourteenth amendment to the United States Constitution.
The DNR argues that Waste Management has no interest in its feasibility determination, approved plan of operation or license which merits due process protection.
The United States Supreme Court in Board of Regents v. Roth, 408 U.S. 564 (1972), stated that the due process clause of the fourteenth amendment protects some benefits conferred on persons by state law. We note, however, that Roth does not suggest that every interest conferred by state law is a protected interest. Accordingly, we first ask whether the law of this state, specifically ch. 144, Stats., confers on Waste Management an interest which merits due process protection and whether the DNR's actions constitute a deprivation of that interest.
In Roth, a teacher with a contract to teach at a state university for one year argued that failure of the university to advise him of reasons for not rehiring him at the end of his term deprived him of a protected "property" interest. The Court disagreed. It stated that "[t]he Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits." Id. at 576. The Court described certain attributes of property interests and the purpose of due process protection: "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577.
Accordingly, the court examined the terms of Roth's appointment, relevant state statutes, and rules and policies of the university to determine whether any of these secured in Roth an interest in reemployment or created a legitimate claim of entitlement to it. Id. at 578. Because the Court found that the terms of the appointment did not assure Roth that the university would give him reasons for nonrenewal or a hearing on its decision not to rehire him, it held that he lacked an interest sufficient to require a hearing on his nonrenewal. Id. at 578. Roth makes clear that the terms and conditions which define a person's benefit under state law also determine whether the benefit is a protected interest under the fourteenth amendment.
Since Roth, the United States Court of Appeals for the Seventh Circuit has applied the Roth definition of a protected interest in one case with facts somewhat analogous to the facts in these cases. In Molgaard v. Town of Caledonia, 696 F.2d 58 (7th Cir. 1982), the court affirmed a district court's holding that property owners who had been granted a conditional approval of a plan for a mobile home park by a town board had no constitutionally protected interest in completion of the proposed park project in accordance with the plan. Molgaard at 59.
The analysis of the district court in Molgaard serves as a guide for our analysis of whether sec. 144.44, Stats., confers on Waste Management a protected interest in its feasibility determination for the Metro site, its approved plan of operation for the Omega Hills site, or its license to operate the Omega Hills site.
The emphasized language indicates that all Waste Management has, as the holder of a favorable feasibility determination, is an opportunity to move ahead in the screening process. Although Waste Management's briefs frequently refer to its feasibility determination as a "plan approval," sec. 144.44(2)(a), Stats., makes it very clear that a "favorable feasibility determination" is not the same as a "plan approval." As the holder of a favorable feasibility determination, Waste Management has neither an approved plan of operation nor a license to operate, nor has it in any manner an assurance that it will receive either.
Clearly the interest which the state confers on the holder of a favorable feasibility determination under sec. 144.44(2)(a) and (3)(c), Stats., fails to meet the threshold for a protected interest under the due process clause as interpreted in Roth and Molgaard. The favorable feasibility determination does not secure an interest in any state benefit. It is conditional on its face. Failure of the holder to comply with conditions in the feasibility determination may extinguish the interest, as may the discovery of new physical conditions at the site. Any expectation that the holder of a determination has that the DNR will later approve a plan of operation or eventually grant a license based on the feasibility determination is "unilateral." Accordingly, we hold that Waste Management's interest in its favorable feasibility determination does not merit due process protection.
With respect to the Omega Hills site cases, although we acknowledge that Waste Management has an interest in its business investment in the Omega Hills site, we note that Waste Management's due process right to operate its facility free from DNR modifications must arise from either the DNR's approval with conditions of its plan of operation or from the DNR's issuance of a license.
"These sites will be constructed in many phases. When you have completed your site preparations for each phase and you have fulfilled the conditions of this approval listed under Site Preparation, please contact the . . . office and arrange for a field inspection of this site. District personnel will inspect the site to determine the extent and completeness of the site preparation. If the site has been prepared in accordance with the engineering plans submitted and this approval, the District will recommend that filling be authorized in those areas. Your license will be issued shortly and this approval will be made part of the license. No waste is to be deposited above the final grades as specified in the Lauer 2 continued use plan dated May 10, 1977 before the license has been issued."
"All portions of this approval are subject to change in conjunction with the detailed review of the monitoring results from both leachate and gas and continuous review of the site operations and working of the plans in the field, other environmental concerns, Chapter NR 151, Wisconsin Administrative Code, other applicable provisions of Chapter 377, Laws of 1977, State of Wisconsin, Laws of 1976 PL-94-500; the Resource Recovery and Conservation Act, if the Department determines it necessary."
Although this letter and the attached report referred to these requirements as "recommendations," both the letter and the attachment make it clear that these recommendations were mandatory requirements, and that these requirements were subject to further modification under certain circumstances. Although the briefs and arguments submitted to this court referred to the plan as an "approved plan of operation," the record indicates that the DNR made it clear from the beginning that any approval was subject to Waste Management's compliance with the specified requirements and was subject to further modification.
The circuit courts found that Waste Management's interest in its plan of operation was a "conditional" interest under the due process clause. We agree. We interpret the June 15, 1978, letter as notice to Waste Management that the DNR's approval was conditioned upon Waste Management's meeting the requirements set forth in the approval letter and that Waste Management could expect further modifications. Waste Management did not have a legitimate claim of entitlement to operate the Omega Hills site according to the plan of operation free from further modifications. The DNR approval of June 15, 1978, was conditioned expressly upon Waste Management's satisfaction of several requirements. Further, both the approval letter and sec. 144.44(3)(d), Stats., inform Waste Management that the plan of operation is subject to modification. Just like the plaintiffs in Molgaard, Waste Management has only a unilateral expectation that the approved plan of operation is final and that they can operate the Omega Hills site free from further modification by the DNR. Accordingly, we hold that Waste Management's interest in the approved plan of operation does not merit due process protection.
". . . conditioned upon and subject to compliance with the provisions of any order issued to the licensee during the term of the license (and upon compliance with the provisions of any plan approval and subsequent modifications thereof made for the facility in writing by the department), which shall be deemed incorporated herein by reference."
Section 144.44(4)(b), Stats. 1977, which was in effect when the DNR licensed the Omega Hills site, provides that "[t]he initial operating license for a site for the land disposal of solid waste or the treatment, storage or disposal of hazardous waste shall not be issued unless the site has been constructed in substantial compliance with the operating plan approved under sub. (3)." We noted earlier that some of the requirements in the approval of the plan of operation relate to construction, while others relate to operation or abandonment. Section 144.44(4)(b) suggests, and the DNR acknowledges, that the issuance of the license indicates that the licensee has satisfied the recommendations relating to construction. The license, however, remains conditioned ". . . upon compliance with the provisions of any plan approval and subsequent modifications thereof . . ." and does not create in Waste Management a legitimate claim of entitlement to operate the Omega Hills site free from any modifications. Rather, the license creates in Waste Management a legitimate claim of entitlement to operate the site free only from modification of the conditions regarding the construction of the site. We hold, therefore, that Waste Management's interest in its license to operate the Omega Hills site constitutes a property interest which merits due process protection to the extent that Waste Management is legitimately entitled to operate its Omega Hills site free from modification of the conditions of construction.
Having determined that the only interest of Waste Management which merits due process protection is its interest in the license to operate the Omega Hills site free from modifications of conditions of construction, we now must determine whether the DNR's actions constitute a deprivation of that interest. If the DNR's actions to constitute a deprivation of Waste Management's interest, then we must determine what procedural protection is due.
In its letters of September 10, 1980, April 6 and 30, 1981, and March 23, 1983, the DNR discusses the 44 recommendations contained in the original plan approval, reaffirming some of the recommendations and modifying others. The DNR's modifications constitute a deprivation of Waste Management's interest in its license if, and to the extent that, the modifications alter recommendations relating to construction that were contained in the original approval of the plan of operation.
Due process dictates that a deprivation of a protected interest ". . . be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313 (1950). "The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement." Cleveland Board of Education v. Loudermill, 53 U.S.L.W. 4306, 4309 (March 19, 1985).
"First, the private interest that wil be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
The government's interest is in protecting the health and welfare of the people by regulating the construction and operation of waste disposal sites to assure against contamination of the environment. Waste Management's private interest is in operating its Omega Hills site as constructed and avoiding the cost of altering the original design of the site.
In operating a waste disposal site according to state and federal regulation, however, Waste Management not only promotes its business interest, it also serves a public interest, disposal of society's waste in an environmentally sound manner. As a public servant, Waste Management has a responsibility to perform its business function in a manner that protects the health and welfare of the citizenry. To protect the health and welfare of the citizenry, Waste Management must conduct its affairs in a way that minimizes the pollution costs society must bear. To minimize the immediate and latent pollution costs society must bear, Waste Management must absorb or internalize the costs of necessary pollution control.
In essence, therefore, the government's interest is in supervising Waste Management to make sure Waste Management fulfills its responsibility to the public by absorbing pollution control costs in its operation of its landfills rather than passing the costs of pollution on to society in the form of environmental contamination. The constitutional guarantee of due process offers Waste Management an opportunity to challenge the reasoning of the DNR's decisions and thereby assures Waste Management that the DNR will act within its statutory authority in exercising its supervisory and regulatory powers.
As noted earlier, the due process clause requires that a person be given "[t]he opportunity to present reasons, either in person or in writing, why proposed action should not be taken." Cleveland Board of Education at 4309. Here, Waste Management engaged in correspondence with the DNR on several occasions detailing its reasons for believing that the DNR's requirements were unwarranted. In responding to Waste Management's concerns, the DNR offered reasons in support of its modifications. We conclude that this type of exchange, if supplemented by judicial review, sufficiently minimizes the risk of an erroneous deprivation of Waste Management's interest. Additional procedural safeguards, such as a full-fledged evidentiary hearing before the DNR, would impose a substantial additional fiscal and administrative burden upon the state without a corresponding decrease in the risk of an erroneous decision.
Unfortunately, Waste Management did not receive judicial review of the DNR's decisions in these cases. Because Waste Management did not receive judicial review of the DNR's decisions, it has no assurance from a neutral decisionmaker that the DNR acted within its statutory authority. As a result, Waste Management was denied due process in these cases.
As we hold in part IV of this opinion, sec. 227.15, Stats., affords Waste Management the right to judicial review of the DNR's decisions to modify requirements contained in the initial approval of the plan of operation for Omega Hills. On remand, Waste Management's statutory right to judicial review will cure the constitutional deprivation found in these cases.
Issue 2: Whether Waste Management has a right to a hearing before the DNR on the DNR's actions under sec. 144.4(3), Stats.
In order to determine Waste Management's rights under sec. 144.44, Stats., we must construe several sections of ch. 144. The construction of statutes in relation to a given set of facts is a question of law. State v. Clausen, 105 Wis.2d 231, 243, 313 N.W.2d 819 (1982). This court must decide questions of law independently without deference to the decision of the trial court. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984).
In the Metro site case, Waste Management argues that its favorable feasibility determination for the site is the equivalent of a plan of operation "approval." According to Waste Management, therefore, the feasibility determination entitles it to a hearing under sec. 144.44(3)(c) and (d), Stats., which it construes as requiring the DNR to hold hearings on modifications of "approvals." It cites the following sentence from the section to support its position: "Any approval may be modified by the department upon application of the licensee if newly discovered information indicates that the modification would not inhibit compliance with the standards adopted under s. 144.435 or, if applicable, s. 144.62."
"(c) Within 90 days after a complete plan of operation is submitted, the department shall either approve or disapprove the plan in writing. The determination of the department shall be based upon compliance with the standards established under s. 144.435 or, in the case of hazardous waste treatment, storage or disposal sites, with the rules and standards established under s. 144.62. . . . An approval may be conditioned upon any requirements necessary to comply with the standards. Any approval may be modified by the department upon application of the licensee if newly discovered information indicates that the modification would not inhibit compliance with the standards adopted under s. 144.435 or, if applicable, s. 144.62."
The words "approval" and "disapproval" in this section, contrary to the assertion of Waste management, refer only to approvals, approvals with conditions, or disapprovals of plans of operation. This section does not use these terms to describe a feasibility evaluation report. In all respects, this section unambiguously addresses only approval or disapproval of plans of operation, not feasibility reports. Therefore, sec. 144.44(3)(c), Stats., is inapplicable.
We need not reach Waste Management's arguments in regard to sec. 144.44(3)(d), Stats., because subsection (3)(d) relates back to the preceding subsection. It begins: "Approval under par. (c) entitles the applicant. . . . "Because subsection (c) applies only to plans of operation, and not feasibility reports, subsection (d) is inapplicable to a feasibility report as well. Accordingly, we hold that secs. 144.44(3)(c) and (d) do not entitle Waste Management to a hearing before the DNR on the DNR's refusal to modify its feasibility determination.
The Omega Hills site cases involve the controversy over requirements which the DNR imposed when it approved the plan of operation for the site on June 15, 1978, subject to Waste Management's compliance with a number of specific requirements. Following requests by Waste Management for changes in certain requirements on July 7, 1978, and September 7, 1978, and extensive discussion of requirements by Waste Management and the DNR, the DNR issued changes in some requirements on September 10, 1980. Similarly, it issued changes in requirements on April 6 and 30, 1981, and March 23, 1983. In general, the changes related to requirements for ground water monitoring, collection and treatment of toxic liquids and other specific aspects of the preparation, construction and operation of the site. Some changes set different deadlines for Waste Management to meet specific requirements and to make reports to the DNR. Notwithstanding the modifications, the approval remained conditioned upon the fulfillment of the requirements.
According to Waste Management, sec. 144.44(3)(d), Stats., requires the DNR to hold a hearing to establish specific reasons for modifying Waste Management's approved plan of operation. Basically, Waste Management asserts that, because sec. 144.44(3)(d) contains a statement of the DNR's burden of proof, it implicitly creates a right to a hearing.
Section 144.44(3)(d), Stats., unambiguously sets out the rights of applicants whose plans have been approved. It does not provide applicants with a hearing on DNR modifications. It provides that the DNR establish "by a clear preponderance of the credible evidence" that any DNR modifications to the approved plan of operation, as conditioned in the initial approval, are necessitated by one of the three circumstances in the section. The legislature simply has expressed its intention that under sec. 144.44(3)(d), DNR decisions receiving judicial review must satisfy the "clear preponderance of the credible evidence" test rather than the "substantial evidence" test used to review most agency decisions. See sec. 227.20(6). Accordingly, we hold that sec. 144.44(3)(d) does not entitle Waste Management to a prior hearing on the DNR's decisions to modify the requirements imposed in the initial approval of Waste Management's plan of operation for the Omega Hills site.
Issue 3. Whether Waste Management has a right to a hearing on the DNR's actions under sec. 227.064, Stats.
Waste Management contends that sec. 227.064, Stats. 1979, entitles it to a contested case hearing before the DNR on both the DNR's refusal to modify the site feasibility determination for the Metro site and on the DNR's requirements in the conditionally approved plan of operation for its Omega Hills site with which Waste Management disagrees. It argues that it satisfies the qualifying conditions under this section and is not excepted from coverage by subsections (3) and (5). The DNR argues that Waste Management does not meet the qualifying conditions of the section and that subsections (3) and (5) exempt these actions.
As we decided in Milwaukee Met. Sewerage Dist. v. DNR, 126 Wis.2d 63, 375 N.W.2d 648 (1985), sec. 227.064, Stats., confers a right to a contested case hearing before an administrative agency on persons who meet its criteria for standing unless exceptions in subsections (3) or (5) apply.
Section 227.064(3), Stats., provides in part: "This section does not apply to . . . actions where hearings at the discretion of the agency are expressly authorized by law." Subsection (3) clearly makes sec. 227.064 inapplicable to an action of an administrative agency if the agency has legal authority to hold hearings on the action at its discretion.
In regard to the Metro site, sec. 144.431(2)(a), Stats., governs any right of Waste Management to a hearing on its feasibility determination. It provides that the DNR ". . . may: (a) Hold hearings relating to any aspect of the administration of ss. 144.43 to 144.47. . . ." In this section use of the word "may" clearly gives the DNR discretion to hold a hearing and does not require the DNR to do so. Because we conclude that the DNR has discretion to hold a hearing and that subsection (3) is therefore applicable, we hold that Waste Management has no right to a contested case hearing under sec. 277.064 at which to challenge the DNR's refusal of its request for a modification of a feasibility determination.
Section 144.431(2)(a), Stats., similarly controls our analysis with regard to the DNR's modifications to the requirements contained in the approved plan of operation for the Omega Hills site. As in the Metro site case, sec. 144.431(2)(a) gives the DNR discretion to hold a hearing and does not require the DNR to do so. Accordingly, we hold that Waste Management has no right to a contested case hearing under sec. 227.064 at which to challenge the DNR's modifications to the requirements contained in the initial approval of the plan of operation for the Omega Hills site. Having found that the DNR's actions were excepted from coverage by sec. 227.064(3) we need not determine whether Waste Management meets the qualifying conditions in sec. 227.064, nor need we determine Waste Management's rights under sec. 227.064(5).
Issue 4: Whether these DNR actions are judicially reviewable under sec. 227.15, Stats., and whether the DNR must state such actions in conformance with sec. 227.10 .
In the Metro site case, the circuit court found that it lacked jurisdiction over the DNR's refusal to modify Waste Management's feasibility determination because Waste Management failed to petition for review of the action in a timely manner. In the Omega Hills site cases, the circuit courts held that the DNR's changes in requirements in the conditionally approved plan of operation were not judicially reviewable under sec. 227.15, Stats., because they were not "final decisions." According to the courts, the actions could not be considered final decisions unless they contained findings of fact and conclusions of law as required of final decisions under sec. 227.10.
Waste Management argues that the circuit courts erred in so holding. The DNR does not dispute the reviewability of its actions in the Omega Hills cases, but does argue that the actions need not conform to sec. 227.10, Stats.
With respect to the Metro site, Waste Management does not challenge the circuit court's holding that its petition for judicial review did not comply with the requirement of sec. 227.16(1)(a), Stats., for timely filing. Therefore, we affirm the holding without reaching its merits.
In regard to the Omega Hills cases, we note the right of judicial review is entirely statutory, and that orders of administrative agencies are not reviewable unless made so by statute. Wis. Environmental Decade v. Public Service Comm., 93 Wis.2d 650, 657, 287 N.W.2d 737, (1980). Section 227.15, Stats., provides for judicial review of administrative agency "decisions" which adversely affect the "substantial interests" of a person, with certain exceptions which are not applicable to these cases. It states: "Administrative decisions which adversely affect the substantial interests of any person, whether by action or inaction, whether affirmative or negative in form, are subject to review as provided in this chapter. . . ."
Standing to seek review of an administrative action under secs. 227.15 and 227.16, Stats., depends on a showing by the petitioner of a direct injury to its legally protected interests. Public Intervenor v. DNR, 115 Wis.2d 28, 35, 339 N.W.2d 324 (1983). In the Omega Hills cases the DNR does not challenge Waste Management's standing for the purpose of sec. 227.15. Therefore, in order to decide whether Waste Management has a right to judicial review of the DNR's changes in requirements in the plan of operation for the Omega Hills site in 1980-83, we must determine only whether the DNR's actions constitute "decisions" under sec. 227.15.
". . . neither the form of the order nor the label of `final' or `interlocutory' necessarily determines its character as to reviewability. . . .
"`. . . The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow. . . .'" Id. at 356.
We distinguished the facts underlying our earlier holding in Neu's Supply Line v. Department of Taxation, 39 Wis.2d 584, 159 N.W.2d 742 (1968), which determined that an order of the Department of Taxation denying relief from a subpoena duces tecum was reviewable as an order directly affecting the legal rights, duties and privileges of the party challenging the order, from the facts of the case on appeal. In Pasch we found that an order of the Department of Revenue finding that it had jurisdiction to proceed to a hearing on the merits of its assessment of taxes against a taxpayer did not directly affect the taxpayer's legal rights, duties or privileges, in that the taxpayer, unlike the subpoenaed party in Neu's Supply Line, retained the right to challenge jurisdiction after a final determination by the Department of Revenue on the merits of the controversy. Pasch at 356-57. Accordingly, we held that the Department of Revenue's denial of a taxpayer's request for an abatement of taxes pending further departmental review of its assessment was not a judicially reviewable action. Id. at 356-57.
In Wis. Environmental Decade we again considered the requirement that actions of an agency be final in order to be reviewable under sec. 227.15, Stats. In that case we reviewed an order of the Public Service Commission (PSC) which denied the request of a public interest organization for investigation of some complaints about the winter rates of utilities. We observed that sec. 227.15 envisions review of decisions ". . . which must be supported by a record and be based upon findings of fact and conclusions of law as required by sec. 227.10." Id. at 659a. Finding that the PSC's order was not a final decision and was not in the format required for a final decision under sec. 227.10, we held that the PSC's order denying the petition for an investigation of the complaint was not a reviewable action. Id. at 659.
Together our holdings interpreting sec. 227.15, Stats., in Pasch and Wis. Environmental Decade provide for judicial review of agency actions which are final, in the sense that they determine the further legal rights of the person seeking review. Further, our decisions require final actions to be stated in conformance with sec. 227.10.
In Omega Hills cases, we conclude that the modifications to the requirements of the plan of operation which the DNR issued on September 10, 1980, April 6 and 30, 1981, and March 23, 1983, following impasses with Waste Management, were final decisions for the purposes of sec. 227.15, Stats. In contrast to the PSC's actions in Pasch, which did not conclusively determine the taxpayer's legal rights, the actions of the DNR in these cases do determine Waste Management's legal rights. Unless Waste Management complies with the DNR's requirements, it risks denial, suspension or revocation of its license under sec. 144.44(4)(a). Absent judicial review of the DNR's modifications, Waste Management faces possible "irreparable injury" to its interest in its investment, in that it must incur the full costs of compliance regardless of whether the requirements are properly imposed under the standards established under sec. 144.44(3)(d).
Because we find that these actions of the DNR are final, we conclude that sec. 227.10, Stats., is applicable. It provides in part that "[e]very . . . final decision of an agency . . . shall be in writing accompanied by findings of fact and conclusions of law." Accordingly, we find that, although the DNR did not set forth its requirements to the plan of operation in the form of a record, based on findings of fact and conclusions of law, it was under a statutory duty to do so.
For these reasons, we hold that Waste Management has a right to judicial review under sec. 227.15, Stats., of the DNR's modifications of requirements to the plan of operation for the Omega Hills site in these cases, and that the DNR is required to state its actions in conformance with sec. 227.10. Further, as we noted in our discussion of sec. 144.44(3)(d), the reviewing court should judge the DNR's actions under the "clear preponderance of credible evidence" test rather than the "substantial evidence" test used to review most agency decisions.
Had the DNR complied with sec. 227.10, Stats., in issuing its requirements to the plan of operation in these cases, we could now review the merits of the requirements. However, on this record we are unable to ascertain either the facts or the legal conclusions on which the DNR based its actions. We therefore remand this issue to the circuit court for action consistent with this opinion.
Because of the conclusions we have reached, we need not consider arguments by Waste Management alleging the DNR's actions were arbitrary and capricious or constituted an abuse of agency discretion.
Opinion filed on October 29, 1985, is withdrawn. Order in Case No. 83-2356 reversed in part, affirmed in part and remanded. Judgment in Case No. 83-2446 reversed in part, affirmed in part and remanded. Order in Case No. 84-600 affirmed on other grounds.

matches: v. v. v. v. v. v. v. v. v. v. v. v.


text:
Is Claimant’s medical treatment after 1997 causally related to her 1993 injury and thus, compensable under the Workers’ Compensation Act?
If yes, did Claimant subsequently suffer a non-work-related intervening injury that broke the chain of causation and/or aggravated Claimant’s work injuries?
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s files relating to this claim.
3. On February 13, 1993 Claimant suffered a work injury to her low back. Claimant’s back pain required her to do exercises to strengthen her back that eventually led to a second claim in 1995 related to her right knee. Defendant accepted both injuries as compensable and paid benefits.
4. On July 10, 1997 the parties signed a Form 22 Agreement for Permanent Partial Disability Compensation, stating that Claimant had reached an end medical result for her work-related back and knee conditions. In accordance with that agreement, Defendant paid permanency benefits for both her back and her right knee.
5. On April 21, 2008 in a non-work-related incident, Claimant was struck by a tractor-trailer while driving. As a result of the accident, Claimant asserts she suffered additional knee and back pain for which she is requesting workers’ compensation benefits.
6. Claimant testified that she has experienced some form of back pain for the past 27 years. She was diagnosed with significant scoliosis of the spine at age 14, a condition that progressively worsened over the next thirty years prior to her work injury. Claimant also was involved in a head-on car collision with another vehicle when she was 17 years old. She suffered low back pain as a result, which she treated with chiropractic care. In the 1970’s Claimant suffered another injury to her low back when she fell down a flight of stairs at work. In the late 1980s she suffered a cervical spine injury while performing clerical work when she turned her head and felt a snapping sensation. This injury caused Claimant to lose time from work and to undergo temporary medical treatment. Last, in February 1987 Claimant complained of both neck and low back pain following a family altercation when she was struck and kicked.
8. Claimant had bilateral knee injuries at an early age. She had surgery on her right knee in 1967 and on her left knee in 1969 for what was described as “loose ligaments.” After surgery and up to the present date, Claimant often wears a knee brace to give her a sense of stability. Although she was able to engage in sports prior to her work injury in 1993 she also needed Ibuprofen to control her knee pain.
9. Shortly after the consultation with Dr. Novotny noted above, Claimant began work for Defendant as a home health aide. As previously stated, she was injured at work while trying to lift a patient. In the course of doing so, Claimant felt two popping sensations in her back and was in a great deal of pain.
10. In April 1993 Dr. Block, an orthopedic surgeon, diagnosed Claimant with right S1 radiculopathy down her right leg from a “probable” L5-S1 disc injury causally related to the lifting incident at work. Eventually it was determined that Claimant had an L4-5 disc bulge.
11. In 1994 Claimant underwent a decompressive laminectomy at L4-5 with disc excision and spinal fusion that included the placement of five facet screws into her spine. Defendant accepted the surgery as compensable and paid workers’ compensation benefits accordingly. Unfortunately, the surgery did not alleviate Claimant’s back pain significantly. It subsequently was referred to as a “failed” surgery.
12. In order to treat Claimant’s continued back pain, in December 1995 Dr. Block removed the spinal hardware that previously had been inserted. Again, Defendant accepted this surgery as compensable and paid workers’ compensation benefits accordingly. Claimant had significant pain reduction following this surgery.
13. In January 1995 Claimant complained of right knee pain that she related to exercises she had been prescribed to strengthen her low back.
14. Claimant treated for her right knee pain with Dr. Vargas, an orthopedist. Dr. Vargas noted Claimant’s long history of knee pain, as well as her prior knee surgeries. He diagnosed chondromalacia of the patella. Chondromalacia of the patella is the abnormal softening of the cartilage under the kneecap. It occurs when the kneecap is aligned poorly over the femur, causing the cartilage there to deteriorate. The condition is sometimes referred to as patellofemoral syndrome or condition. In Claimant’s case, the condition relates back to the bilateral knee surgeries she underwent in the 1960’s.
15. Following the January 1995 incident of right knee pain, Claimant underwent an MRI, which showed a large congenital chondral defect in the lateral patella facet consistent with chondromalacia of the patella.
16. Based on the results of a CT scan, knee surgery was recommended and performed by Dr. Robbins in October 1996. It involved cutting and repositioning the bone in Claimant’s right knee, and then drilling and placing screws into the joint. Dr. Robbins’ post-surgery diagnosis included patellofemoral pain, arthritis and previous reconstruction of Claimant’s knees with tendonitis. Defendant accepted this surgery as a compensable outgrowth of Claimant’s original 1993 work injury as aggravated by the 1995 back strengthening exercises. It is not a subject of the current dispute.
17. Claimant continued to have knee pain after the surgery and she was observed to have degenerative arthritis bilaterally in her patellofemoral joints. Nevertheless, she was declared to be at end medical result for both the 1993 back injury and the 1995 right knee injury and returned to work part-time.
18. As noted, in July 1997 the parties signed a Form 22 Agreement for Permanent Partial Disability Compensation, pursuant to which Defendant paid permanency benefits for a 29% impairment to Claimant’s low back and a 10% impairment to her right knee.
19. Claimant had significant pain relief for two or three years after her 1995 back surgery. She did continue to have some pain when the weather was bad and the barometric pressure was low. However, she was able to work at a variety of jobs as a store clerk and prep cook. Medical records indicate that Claimant was the most improved she had been in a long time, and that she hoped to begin yoga and tai chi classes.
20. Claimant did continue to complain of episodic low back pain. In November 1998 her treating osteopath, Dr. Woodworth prescribed ongoing narcotic pain medication for her chronic pain. Dr. Woodworth expected that Claimant would need these medications indefinitely. Claimant has taken Percocet and Oxycontin continuously for her back and knee pain and Soma for muscle spasms.
21. Claimant continued to treat with a variety of providers for her chronic low back pain. In 1999 she underwent nerve conduction studies with Dr. Kloman, who diagnosed her with atypical fibromyalgia syndrome and chronic pain syndrome. Dr. Kloman did not distinguish between the medical problems Claimant had as a result of her work injury and her other, non-work-related medical issues, including depression, pain from her scoliosis, and arthritis.
22. Claimant treated her chronic back pain with chiropractic manipulations. Later, when she moved to New York to live with her mother she treated with Dr. Hardies, a primary care doctor, Dr. Cecil, an orthopedist, and Dr. Whalen, an orthopedic surgeon. All of these providers attributed Claimant’s condition primarily to her scoliosis, which they described as “severe.” For example, in 2005 Dr. Hardies noted that Claimant’s scoliosis had become so severe that it was compromising her ability to have adequate respiratory function and was producing severe back and lower extremity pain. Later, in 2006 Dr. Whalen stated that Claimant’s “severe degenerative progressive scoliosis” was the “major problem” with her back.
23. Claimant also continued to suffer from right knee pain after being declared at an end medical result for her work injury. She treated with numerous orthopedists, including Dr. Boynton, Dr. Matheny and Dr. Czajka. All recommended conservative treatment, including stretching and strengthening exercises. None of the these doctors provided opinions to the necessary degree of medical certainty as to the cause of Claimant’s right knee symptoms but all agreed that that it involved patellofemoral arthritis.
24. By 2004 Claimant was experiencing pain in both knees. An MRI in September 2005 revealed degenerative osteoarthritis bilaterally.
25. Claimant continued to follow up with a number of doctors. Throughout this period she took a variety of medications for her pain, including Soma, a muscle relaxant that also reduces the way the brain perceives pain, Lyrica for muscle spasms, Oxycontin, a narcotic pain medication, and Percocet, a narcotic medication for “break-through” pain. Claimant has been taking these medications continuously since the late 1990s.
26. On April 21, 2008 Claimant was involved in a motor vehicle accident in New York when she was struck by a tractor-trailer. Claimant was transported by ambulance and treated at the hospital Emergency Department. She testified that her lumbar spine muscles “locked up” and that she could not feel her legs.
27. Claimant’s immediate complaints were neck pain and numbness in her legs. She sought treatment for these symptoms with Dr. Hardies, her primary care provider. Dr. Hardies noted that as a result of the motor vehicle accident Claimant had sustained injuries to both her knees, right more painful than left, and to her back, primarily her cervical spine. Dr. Hardies recommended physical therapy, medications and x-rays.
28. Claimant went only twice to physical therapy and then decided she could do her exercises at home. Consistent with Dr. Hardies’ notes, the physical therapy records indicate that her primary problem areas were her cervical spine and bilateral knees.
29. In May 2008 Claimant underwent a lumbar spine MRI, which revealed a right-sided paracentral disc protrusion at L3-4. The medical experts later disagreed as to whether this finding represented a new injury causally related to the motor vehicle accident.
31. At Defendant’s request, Claimant underwent an independent medical examination of her right knee with Dr. Bernini, an orthopedic surgeon, in December 2001. Dr. Bernini noted that Claimant had suffered bilateral knee pain ever since her surgeries in the 1960’s. Notwithstanding her pre-existing condition, however, Dr. Bernini concluded that Claimant still had not recovered from her more recent work-related knee surgery therefore had not yet returned to her baseline condition.
32. Claimant underwent a second independent medical evaluation in August 2002, this time with Dr. Kinley, another orthopedist. Dr. Kinley concluded that Claimant’s low back symptoms were causally related to her 1993 work injury, but that her knee complaints were not. Specifically, in Dr. Kinley’s opinion, Claimant’s knee complaints most likely were related to subluxation of her patella, a congenital condition neither caused nor aggravated by the 1995 back strengthening exercises. Dr. Kinley also noted arthritis in both of Claimant’s knees, which again he felt predated her work injuries. In September 2002 Dr. Kinley stated that Claimant had reached her “pre-accident” status and was at end medical result for any work-related injury to her knees.
33. At Defendant’s request, in January 2007 Claimant underwent an independent medical evaluation with Dr. Belmonte, an occupational medicine specialist. Dr. Belmonte concluded that Claimant had suffered an acute lumbar strain as a result of her 1993 work injury. However, he determined that after her spinal surgery her low back condition stabilized. He therefore concluded that Claimant’s current back pain was due to her pre-existing progressive scoliosis, which over time had caused her spine to become curved and misaligned. Dr. Belmonte related all of the medical treatment Claimant received after her second spinal surgery to the natural progression of this prior condition, and not to her 1993 work injury.
34. Regarding Claimant’s right knee, Dr. Belmonte determined that following her 1996 surgery her symptoms resolved and she returned to “status quo.” Dr. Belmonte opined that Claimant’s current knee condition was related to arthritis caused by her prior knee injuries and had not been aggravated by the 1995 back strengthening exercises. On those grounds, Dr. Belmonte found that none of the treatment Claimant had undergone for her knee pain after 1996 was causally related to her work injuries.
35. Claimant argues that Dr. Belmonte did not have all of the medical records concerning her right knee when he issued his original report. However, by the time of the formal hearing, Dr. Belmonte had reviewed all of the records and his opinions remained constant.
36. In November 2007 Claimant underwent an independent medical evaluation with a doctor of her choice, Dr. White. Dr. White is an occupational medicine specialist who, like Dr. Belmonte is highly credentialed in that area. Dr. White evaluated Claimant for both her chronic back and knee conditions. At the time of his evaluation, however, he had little information about either Claimant’s prior knee injuries or her scoliosis.
37. Dr. White concluded that Claimant’s back pain was causally related to her 1993 work injury and not to her scoliosis. He noted that back fusion surgery can create a risk of adjacent disc degeneration and that therefore Claimant’s low back symptoms probably resulted from her 1994 surgery. However, at the time Dr. White issued this opinion he was not aware either that Claimant had suffered from scoliosis in both her cervical and lumbar spine prior to the 1993 injury or that she had experienced low back pain previously as well. Given that Dr. White’s conclusion was based at least in part on his assumption that Claimant’s scoliosis was confined to her cervical spine, and that therefore it would not have been responsible for lumbar pain, this gap in his understanding of Claimant’s medical history is significant.
38. As for her right knee, Dr. White concluded that Claimant did have a pre-existing pathology of patellofemoral chondromalacia. However, he found that the March 1995 injury Claimant sustained while doing back strengthening exercises had aggravated this prior condition, and that “there [had been] no change in that situation.” Again, however, Dr. White’s conclusion in this regard was based on an inaccurate understanding of Claimant’s medical history, specifically Claimant’s representation that she had not suffered from significant knee pain prior to 1995. For example, Dr. White was not aware that Claimant often wore a knee brace prior to her work injury or that she took pain medications for her knee symptoms. Dr. White’s opinion also fails to account for the fact that while Claimant allegedly injured only her right knee in the 1995 incident she suffered from the same symptoms in her left knee as well.
39. After comparing the MRI study done after Claimant’s 2008 motor vehicle accident with the one taken three years prior, Dr. Belmonte concluded that the car accident had aggravated the underlying condition of her lumbar spine. In his opinion, the more recent MRI revealed an increase in pathology in that area.
40. Dr. Belmonte also found that the car accident caused an increase in Claimant’s right knee symptoms. As noted above, however, in Dr. Belmonte’s opinion Claimant’s right knee symptoms dated back to the injuries she sustained in the 1960’s and therefore were never causally related to her 1995 work injury at all.
41. Dr. White disagreed with Dr. Belmonte’s conclusions. In his opinion, Claimant’s back and knee conditions were not significantly different after the 2008 motor vehicle accident from what had existed previously. Therefore, Dr. White concluded that the car accident caused only a temporary exacerbation, following which Claimant returned quickly to her baseline condition. Again, in reaching this conclusion Dr. White stated that Claimant had not told him that she had suffered from any low back pain prior to the 1993 work injury. Dr. White admitted that had his understanding of Claimant’s prior medical history been more accurate his opinions might have changed.
42. Dr. White also concluded that the 2008 motor vehicle accident did not aggravate Claimant’s underlying knee condition. Again, however, Dr. White’s conclusion in this regard was based at least in part on his inaccurate understanding of Claimant’s prior medical history. Specifically, Dr. White testified that Claimant’s knees had been “wonderful” prior to her 1995 work injury. As noted above, he was unaware either that Claimant wore a knee brace prior to that injury or that she took pain medications.
43. Claimant’s attorney has submitted a request for costs totaling $3,582.68 and attorney’s fees totaling $7,101.00.
1. Claimant asks that all medical treatment for her low back and right knee subsequent to July 1997 be found compensable. Defendant disagrees. It argues that any such treatment was necessitated by her pre-existing scoliosis and degenerative arthritis. Defendant further argues that the 2008 motor vehicle accident aggravated her underlying conditions and broke the causal connection between her ongoing symptoms and her 1993 and 1995 work injuries.
2. In workers’ compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
3. Once the employer accepts a claimant’s injuries as compensable, as Defendant did here, the burden shifts to it to establish a sufficient basis for terminating compensation. Merrill v. University of Vermont, 133 Vt. 101 (1974).
4. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
5. Claimant refers to Dr. White’s expert medical opinion in support of her claim, while Defendant relies on Dr. Belmonte. Both doctors performed independent medical evaluations in 2007 and then received additional information regarding the 2008 motor vehicle accident. Neither had a treating relationship with Claimant. Both were hired specifically to evaluate her knee and back injuries for the instant case.
6. Both physicians are highly credentialed in the area of occupational medicine. Dr. White has practiced occupational medicine for approximately twenty years. He is the staff physician for the Functional Capacity Evaluation Center and frequently performs independent medical evaluations. He also is the founder of Occupational Health Logic, a company that strives to provide solutions to businesses related to occupational health issues. For his part, Dr. Belmonte also has practiced in the field of occupational medicine for almost twenty years. He is board-certified both as an Independent Medical Examiner and as an occupational medicine specialist. His current practice includes consultations, occupational medicine program development and evaluations.
7. Issues arose at hearing regarding whether either medical expert had all of the relevant medical information at the time that they issued their opinions. As previously noted, at the time Dr. White evaluated Claimant he did not have detailed information about the back and knee problems from which she suffered even prior to her work injuries. He did not know that Claimant had used a brace continuously for her knee, or that she had been diagnosed with both lumbar and cervico-thoracic scoliosis.
8. At the time Dr. Belmonte wrote his report, he did not have all the medical records regarding Claimant’s right knee. Unlike Dr. White, however, who admitted that his opinions might have changed had he had a more accurate picture of Claimant’s prior medical history, Dr. Belmonte testified that even after reviewing the medical records he originally had lacked, his conclusions as to causal relationship remained constant.
9. I find Dr. Belmonte’s opinions to be the most persuasive. He was aware of the extent of Claimant’s prior back and knee conditions and the effect that arthritis, osteoporosis and degeneration from age would have on them. He determined that any evaluation or treatment for Claimant’s back related back to her preexisting scoliosis, a progressive condition from which Claimant had suffered since the early 1960’s, and not in any way to her 1993 work injury.
10. The fact that Claimant returned to work in 1996 lends further support to Dr. Belmonte’s opinion. It shows that her back had stabilized to the point that she was able to be employed.
11. As for Claimant’s current right knee pain, Dr. Belmonte testified that she continues to suffer from patellofemoral chondromalacia, a condition that pre-existed the injury she sustained while doing back strengthening exercises in 1995. In Dr. Belmonte’s opinion, the 1995 incident aggravated Claimant’s right knee symptoms only temporarily, following which her condition stabilized and returned to baseline. This conclusion is consistent with Dr. Kinley’s findings. Dr. Belmonte therefore determined that any treatment Claimant received for her right knee after 1996 was causally related to her advanced arthritis, a condition that was neither caused nor aggravated by her work injury. Dr. Belmonte’s opinion in this regard credibly accounts for the fact that notwithstanding the injury caused to Claimant’s right knee as a result of the 1995 event, its condition subsequently was essentially the same as that of her left knee.
12. I conclude, therefore, that Claimant reached an end medical result for both her 1993 work-related back injury and her 1995 work-related right knee injury at least as of July 1997, when the parties executed a Form 22 Agreement for Permanent Partial Disability Compensation. Any medical treatment she received subsequently was causally related to her pre-existing conditions, and not to either of her compensable injuries.
13. I further conclude that Claimant’s 2008 motor vehicle accident did not aggravate her work-related injuries in any way.
14. Claimant having failed to prevail on either of her claims, she is not entitled to an award of costs or attorney’s fees.
Based on the foregoing findings of facts and conclusions of law, Claimant’s claim for workers’ compensation benefits covering the medical treatment she has received since July 1997 is hereby DENIED.
DATED at Montpelier, Vermont this 24th day of March 2009.

matches: v. v. v. v. v. v.


the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.
the subject matter disclosed and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person.
the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.
if the patent or application for patent is entitled to claim a right of priority under section 119, 365(a), 365(b), 386(a), or 386(b), or to claim the benefit of an earlier filing date under section 120, 121, 365(c), or 386(c), based upon 1 or more prior filed applications for patent, as of the filing date of the earliest such application that describes the subject matter.
Paragraphs (a), (b), and (c) are based on Title 35, U.S.C., 1946 ed., § 31 (R.S. 4886, amended (1) Mar. 3, 1897, ch. 391, § 1, 29 Stat. 692, (2) May 23, 1930, ch. 312, § 1, 46 Stat. 376, (3) Aug. 5, 1939, ch. 450, § 1, 53 Stat. 1212).
No change is made in these paragraphs other than that due to division into lettered paragraphs. The interpretation by the courts of paragraph (a) as being more restricted than the actual language would suggest (for example, “known” has been held to mean “publicly known”) is recognized but no change in the language is made at this time. Paragraph (a) together with section 104 contains the substance of Title 35, U.S.C., 1946 ed., § 72 (R.S. 4923).
Paragraph (d) is based on Title 35, U.S.C., 1946 ed., § 32, first paragraph (R.S. 4887 (first paragraph), amended (1) Mar. 3, 1897, ch. 391, § 3, 29 Stat. 692, 693, (2) Mar. 3, 1903, ch. 1019, § 1, 32 Stat. 1225, 1226, (3) June 19, 1936, ch. 594, 49 Stat. 1529).
The section has been changed so that the prior foreign patent is not a bar unless it was granted before the filing of the application in the United States.
Paragraph (e) is new and enacts the rule of Milburn v. Davis-Bournonville, 270 U.S. 390, by reason of which a United States patent disclosing an invention dates from the date of filing the application for the purpose of anticipating a subsequent inventor.
Paragraph (f) indicates the necessity for the inventor as the party applying for patent. Subsequent sections permit certain persons to apply in place of the inventor under special circumstances.
Paragraph (g) is derived from Title 35, U.S.C., 1946 ed., § 69 (R.S. 4920, amended (1) Mar. 3, 1897, ch. 391, § 2, 29 Stat. 692, (2) Aug. 5, 1939, ch. 450, § 1, 53 Stat. 1212), the second defense recited in this section. This paragraph retains the present rules of law governing the determination of priority of invention.
Language relating specifically to designs is omitted for inclusion in subsequent sections.
2012—Subsec. (d)(2). Pub. L. 112–211 substituted “to claim a right of priority under section 119, 365(a), 365(b), 386(a), or 386(b), or to claim the benefit of an earlier filing date under section 120, 121, 365(c), or 386(c)” for “to claim a right of priority under section 119, 365(a), or 365(b), or to claim the benefit of an earlier filing date under section 120, 121, or 365(c)”.
2011—Pub. L. 112–29 amended section generally. Prior to amendment, section related to conditions for patentability; novelty and loss of right to patent.
“(2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that a patent shall not be deemed filed in the United States for the purposes of this subsection based on the filing of an international application filed under the treaty defined in section 351(a); or”.
1999—Subsec. (e). Pub. L. 106–113, § 1000(a)(9) [title IV, § 4505], as amended by Pub. L. 107–273, amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: “the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs (1), (2), and (4) of section 371(c) of this title before the invention thereof by the applicant for patent, or”.
1975—Par. (e). Pub. L. 94–131 inserted provision for nonentitlement to a patent where the invention was described in a patent granted on an international application by another who has fulfilled the requirements of pars. (1), (2), and (4) of section 371(c) of this title before the invention thereof by the applicant for patent.
1972—Subsec. (d). Pub. L. 92–358 inserted reference to inventions that were the subject of an inventors’ certificate.
Amendment by Pub. L. 112–211 effective on the later of the date that is 1 year after Dec. 18, 2012, or the date that the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs enters into force with respect to the United States (May 13, 2015), and applicable only to certain applications filed on and after that effective date and patents issuing thereon, with certain exceptions, see section 103 of Pub. L. 112–211, set out as a note under section 100 of this title.
Amendment by Pub. L. 112–29 effective upon the expiration of the 18-month period beginning on Sept. 16, 2011, and applicable to certain applications for patent and any patents issuing thereon, see section 3(n) of Pub. L. 112–29, set out as an Effective Date of 2011 Amendment; Savings Provisions note under section 100 of this title.
Amendment by section 1000(a)(9) [title IV, § 4505] of Pub. L. 106–113 effective Nov. 29, 2000 and applicable to all patents and all applications for patents pending on or filed after Nov. 29, 2000, see section 1000(a)(9) [title IV, § 4508] of Pub. L. 106–113, as amended, set out as a note under section 10 of this title.
Provisions of former subsec. (g) of this section, as in effect on the day before the expiration of the 18-month period beginning on Sept. 16, 2011, apply to each claim of certain applications for patent, and certain patents issued thereon, for which the amendments made by section 3 of Pub. L. 112–29 also apply, see section 3(n)(2) of Pub. L. 112–29, set out as an Effective Date of 2011 Amendment; Savings Provisions note under section 100 of this title.
For purposes of evaluating an invention under section 102 or 103 of title 35, United States Code, any strategy for reducing, avoiding, or deferring tax liability, whether known or unknown at the time of the invention or application for patent, shall be deemed insufficient to differentiate a claimed invention from the prior art.
For purposes of this section, the term ‘tax liability’ refers to any liability for a tax under any Federal, State, or local law, or the law of any foreign jurisdiction, including any statute, rule, regulation, or ordinance that levies, imposes, or assesses such tax liability.
is a method, apparatus, technology, computer program product, or system used solely for financial management, to the extent that it is severable from any tax strategy or does not limit the use of any tax strategy by any taxpayer or tax advisor.
Nothing in this section shall be construed to imply that other business methods are patentable or that other business method patents are valid.
Relief as to filing date of patent application or patent affected by postal situation beginning on Mar. 18, 1970, and ending on or about Mar. 30, 1970, but patents issued with earlier filing dates not effective as prior art under subsec. (e) of this section as of such earlier filing dates, see section 1(a) of Pub. L. 92–34, formerly set out in a note under section 111 of this title.