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Kirbens v. Wyoming State Board of Medicine12/6/1999
disability and that he was not otherwise protected by the ADA. Furthermore, Kirbens does not refer us to any provision of the ADA which would require the Board to make the requested accommodation. See Wolfgram, at *7. Assuming without deciding that the ADA applies, the Colorado Supreme Court has ruled that the ADA did not prevent it from exercising discretion and rejecting the proposed disciplinary measures of an attorney found to have committed serious misconduct and harm. People v. Reynolds, 933 P.2d 1295, 1305 (Colo. 1997). We agree that the ADA defers to the licensing authority, and uphold the exercise of the Board=s discretion in rejecting Kirbens= proposed disciplinary measures. See Theriault v. Flynn, 162 F.3d 46, 50 (1 st Cir. 1998). Under these circumstances, we hold that the Board is not acting discriminatorily by refusing to allow Kirbens to voluntarily relinquish his license or by not placing him in a state-sponsored rehabilitation program.
Finding of Willfulness
The Board decided that Kirbens violated Wyo. Stat. Ann. ' 33-26-402(a)(xviii) by willful and consistent utilization of medical service or treatment which is inappropriate or unnecessary. Kirbens contends the record does not show by clear and convincing evidence that his actions constituted willful misconduct. He contends the statutory term Awillful@ is to be defined as Awillful misconduct.@ He provides a definition of willful misconduct from the criminal case of Norfolk v. State, 360 P.2d 605, 607 (Wyo. 1961):
Willful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result. (emphasis omitted.)
The Board does not contest the application of this definition, relying instead on those portions of the record supporting its findings and Conclusions that Kirbens= actions were not accidental, and were, therefore, willful actions in violation of the statute. We apply our general rule that we look to the ordinary and obvious meaning of a statute when the language is unambiguous. Parker Land, 845 P.2d at 1042.
The term Awillful misconduct@ as used in the criminal context generally means an act done with a bad purpose. Blacks Law Dictionary 1600 (6 th ed. 1990). In the civil context, it Aoften denotes an act which is intentional, or knowing, or voluntary as distinguished from accidental.@ Id. In the professional licensing context, the Board is not required to prove patient injury to establish willful acts nor should it be defined as in tort. See Medical Licensing Bd. of Indiana v. Ward., 449 N.E.2d 1129, 1141 (Ind. App. 4 Dist. 1983); Dixon v. State Bd. of Optometric Examiners, 565 P.2d 960, 963 (Colo. App. 1977). Because it is inappropriate to apply definitions from either a criminal or tort context, we review the Board=s finding on the issue of Awillful@ to determine if the evidence establishes intentional, or knowing, or voluntary acts as distinguished from accidental.
gency action will be set aside if it is not supported by substantial evidence. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the Conclusions of the agency. The entire record is to be examined to determine if there is substantial evidence to support the agency's findings. The reviewing court does not substitute its judgment for that of the agency with respect to findings of fact if they are supported by substantial evidence. When the case comes before the supreme court, the findings of the agency are reviewed without according any special deference to the decision of the
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