Summary 2006 WY 61

Summary of Decision issued May 16, 2006

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Case Name: Perry v. State, ex rel., Wyoming Workers’ Safety and Compensation Division

Citation: 2006 WY 61

Docket Number: 05-54

Appeal from the District Court of Laramie County, the Honorable Edward Grant, Judge.

Representing Appellant (Petitioner): Bernard Q. Phelan, Cheyenne, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; and Kristi M. Radosevich, Assistant Attorney General.

Date of Decision: May 16, 2006

Issue: Whether an employee who has deviated from a prescribed safety rule resulting in injury should be denied workers’ compensation benefits.

Holding: In her capacity as a Certified Nurse Assistant (CNA), Appellant was injured while working alone to help a patient, classified as a “two-person lift”, move to a wheelchair. Employer had a written policy which Appellant had acknowledged regarding the lift policy.
Appellant and the Division each presented evidence to OAH. Where both parties have presented evidence, the Court applies the substantial evidence standard to review the agency’s findings of fact. The Court must also examine all the evidence in the record to determine whether the hearing examiner could have reasonably made its finding and order. Agency conclusions of law are reviewed de novo.
The hearing examiner relied on Smith v. Husky Terminal Restaurant, Inc. in concluding that Appellant was not entitled to worker’s compensation benefits. The elements in Smith are: (1) the employer expressly and carefully informs the employee that she must not perform a specific task or tasks while in his employ; (2) the employee knows and understands the specific restriction imposed; (3) the employer has not knowingly continued to accept the benefit of a violation of the restriction by the employee; and (4) the injury for which benefits are claimed arises out of conduct that clearly violates the specific restriction. The factual record supports the hearing examiner’s conclusion that Appellant violated the two-person lift rule and that she was not entitled to benefits under Smith. The Court did not agree that Appellant’s argument that the injury was compensable because she violated a proscribed means or method of performing the ultimate work but that she did not stray from the ultimate work she was hired to perform. The Court stated that Appellant was clearly aware of the rule and knew that she was violating it, doing a prohibited thing and risking termination. The Smith ruling delineates a method for determining the parameters of the work which is covered by worker’s compensation but does not inappropriately incorporate fault principles into the worker’s compensation analysis.

The Court affirmed.

Dissent: C.J. Hill and J. Burke dissented, stating that they felt the Court should consign the rule articulated in Smith to history, or specifically limit its application based on the fact that the rule is now dated and largely discredited. If not, the Justices felt it was readily recognizable that it should not apply to the circumstances in the instant case. The Justices stated that evidence was missing in the case and that the Division’s theory of the case was not supported by substantial evidence in the record. Also, the Division’s argument that the incident at issue was outside the course and scope of Appellant’s employment was invalid. The Justices would have reversed the order of the district court affirming the hearing examiner and would have directed the district court to remand the case to the hearing examiner and the Division with directions that the claim for benefits be paid.

J. Kite delivered the opinion for the court.
C.J., Hill dissents, with J. Burke joining.

Link to the case: http://tinyurl.com/g6r2j .