Summary 2006 WY 82

Summary of Decision issued July 13, 2006

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Case Name: In the Matter of Worker’s Compensation Claim of Lena Chavez v. Memorial Hospital of Sweetwater County, State, ex rel, Wyoming Workers’ Safety and Compensation Division

Citation: 2006 WY 82

Docket Number: 05-190

Appeal from the District Court of Sweetwater County, the Honorable Nena R. James, Judge.

Representing Appellant (Petitioner): Istvan Harton of Steve Harton, P.C., Rock Springs, Wyoming.

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

Date of Decision: July 13, 2006

Issue: Whether the Office of Administrative Hearings’ decision granting summary judgment to the Wyoming Workers’ Compensation Division is in accordance with law.

Holding: Claimant suffered a work-related injury to her cervical spine on October 27, 1999, while working for Memorial Hospital of Sweetwater County as a certified nursing assistant (CAN) and unit secretary. The hearing examiner decided as a matter of law, Appellant had not suffered a loss of earning capacity because (1) a vocational evaluation indicated she could return to work at a wage of at least 95% of her pre-injury wage; and (2) she had accepted a job in Scottsbluff, Nebraska at a wage greater than her pre-injury wage.
The Court reviews an appeal as if the case came directly from the agency. The summary judgment procedures set forth in W.R.C.P. 56 apply to worker’s compensation cases. An injured worker has the burden of proving each of the elements of his or her claim by a preponderance of the evidence. The interpretation and correct application of the provisions of the Wyoming Workers’ Compensation Act are questions of law which the Court reviews de novo.

Appellant applied for permanent partial disability (PPD) benefits as a result of her injury. Medical and non-medical evidence is considered in determining whether an employee has suffered a loss of earning capacity. Factors to be considered include the employee’s physical impairment, including the nature and extent of the injury, age, education, actual earnings, including pre- and post-injury earnings, ability to continue pre-injury employment and post-injury employment prospects. A vocational evaluation was prepared taking into account those factors listed above. The focal point for loss of earnings analysis is the employer’s actual ability or inability to return to employment at a comparable or higher wage because of the work-related injury. The hearing examiner considered Appellant’s CNA job in Nebraska because it was her first employment after she returned to work following her surgery, irrespective of when she filed her PPD application. The focus of the statute is on the injured employee’s ability to earn. The hearing examiner looked beyond the vocational evaluation and relied upon Appellant’s employment in Nebraska in granting summary judgment. As recognized by the hearing examiner, the bottom line was Appellant did not qualify for PPD benefits, as a matter of law, because she did not suffer a loss of earning capacity.

Affirmed.

J. Kite delivered the opinion for the court.

Link to the case: http://tinyurl.com/g4pxc .