[¶ 1] Appellant Javier Hermosillo was denied permanent partial disability benefits after a hearing examiner found that Hermosillo had failed to prove that he could not return tо work at a equiparable wage, and had actively sought work as required by Wyo. Stat. Ann. § 27-14-405(h). He appeals, contending that substantial evidence does not support these findings. Our review of the record indicates otherwise, and we affirm.
ISSUES
[¶ 2] Hermosillo presents this statement of the issues for our review:
1. Whether Appellant failed to satisfy the job search requiremеnts in Wyo. Stat. § 27-14-405(h)(iii).
2. Whether Appellant was earning $8.00 per hour or $9.00 per hour at the time of injury.
The State phrases the issues as follows:
I. Whether the Hearing Examiner erred in finding that Appellant failed to prove that he was, becаuse of his compensable injury, unable to return to employment at a wage comparable to or higher than the wage he was earning at the time of his injury.
II. Whether the Hearing Exаminer erred in finding that Appellant failed to prove that he had actively sought suitable work, considering his health, education, training and experience.
FACTS
[¶ 3] Hermosillo sustained a compensable back injury in 1997. The Division of Workers’ Compensation (Division) paid benefits, including benefits for three surgeries, and assigned a permanent partial impairment rating of 15%. On August 5, 2000, Hermasil-lo applied for permanent disability benefits as permitted by Wyo. Stat. Ann. § 27-14-405. Under the statute, Hermosillo would receive the award if he could prove the injury prevented him from returning to employment at a comparable or higher wage than that being earned at the time of injury, and he had actively sought suitable work, considering his health, education, training and experience.
[¶4] Hermosillo underwent a vocational evaluation. Using $8.00 per hour as the wage he was earning at the time of injury, the evaluator concluded that Hermosillo could return to work at a comparable or higher wage. The Division denied the award application, and a contested case hearing was held. Hermosillo testifiеd that he was paid an additional $1.00 per hour for opening the business and was, therefore, earning $9.00 per hour at the time of injury, and at this higher rate, the Division had erred in finding work available at a comparable rate.
[¶ 5] Although Hermosillo’s physician placed restrictions and limitations on lifting, Hermosillo was released to work, and applied for positions in 1999 аnd March of 2000. The hearing examiner found that Hermosillo did not seek employment after receiving a functional capacity assessment in September of 2000, or after being released for work by his physician. The hearing examiner found that Hermosillo had .relied on the Department of Vocational Rehabilitation to find employment and did not take any other steps to find employment. Based on these findings, the hearing examiner concluded that Hermosillo had failed to prove that he actively sought employment and upheld the Division’s denial *926 of benefits. The decision was affirmed by the district court. This appeal followed.
DISCUSSION
Standard of Review
[¶ 6] A claimant for worker’s compensation benefits has the burden of proving all thе essential elements of the claim by a preponderance of the evidence in the contested case hearing.
In Re Worker’s Comp. Claim of Johnson,
Statutory Eligibility
[¶ 7] In his first challenge, Hermosillo disputes the hearing examiner’s finding that his hourly rаte at the time of injury was $8.00 per hour and contends that no work is available at a comparable wage. When Hermosillo was injured in 1997, his injury report stated his hourly income as $8.00 per hour, and during the hearing he testified that it was $9.00 per hour. His permanent disability award application contained two entries, one of which stated that his hourly wage at the time of injury was $9.50 per hour, and another that stated it was $9.00 per hour. The Division contends that because Hermosillo failed to support the higher rate with pay stubs or written evidence, the hearing examiner reasonably relied upon the wage stated on the injury report. We agree that this was a reasonable resolution of the conflicting statements, that substantial еvidence supports this wage rate, and the vocational evaluation identified available positions at a comparable wage.
[¶ 8] Hermosillo next contends that he could rely upon the Department of Vocational Rehabilitation to find employment, and the hearing examiner arbitrarily determined that his efforts were insufficient under the statute. The Division contends that its rules establish that Hermosillo’s efforts were insufficient, and the hearing examiner properly concluded that he had not actively sought employment. Hermosillo does not challenge the rule’s application, and we assume it applies. The rule states:
(x) Actively Seeking Work. For purposes of benefit eligibility an individual is actively seeking work if they:
(i) Have engaged in a systematic and sustained effort to obtain work;
*927 (ii) Registers for work and continues to report to a department office in effort to obtain suitable employment;
(iii) Are available for suitable employment;
(iv) Furnished the department with tangible evidence of their effort; or
(v) Have contacted their employer from the time of injury to inquire if they have work available within their medically documented restrictions.
Wyo. Workers’ Compensation Division Rules, Regulations & Fee Schedules, Ch. 1, Sec. 4(x) (Oct.1999).
[¶ 9] The State tells us that the rule has since been changed from “or” to “and” between elements number four and five, and requests that we correct this previоus version. Again, Hermosillo presents no objection to this; however, we find it unnecessary to determine the rule’s intent. Under the statute, the hearing examiner was required to consider whether the evidence showed that Hermosillo was “actively” seeking employment. A review of the record shows that Hermosillo testified that, since 1999, he had applied at ten diffеrent companies, but, in his opinion, had not been hired either because of his health or his limited ability to speak English. Hermosillo did not testify about the specific dates of his applications or provide further details about his job search efforts. Before he applied for benefits, he registered with the Department of Vocational Rehabilitatiоn and, at the time of hearing, was about to begin a part-time position for a few hours per week. In contrast, the Division presented testimony by the vocational evaluator that, in 2000 and 2001, work was available for which Hermosillo was qualified and would accommodate the lifting restrictions imposed by his physician. The evaluator testified that work at a cоmparable or higher wage was available for Hermosillo despite a language barrier and lifting restrictions: This evidence of sporadic efforts is substantial evidence supporting the hearing examiner’s conclusion that Hermosillo did not present evidence that he had engaged in any kind of a sustained effort to apply or train for work when he аpplied for benefits. Although the evidence somewhat conflicts, a review of the entire record shows that the hearing examiner’s conclusion that Hermosillo had not actively looked for work as required by the statute was reasonable and not arbitrary and capricious.
[¶ 10] Affirmed.
