Summary 2009 WY 34

Summary of Decision issued March 10, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

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

Citation: 2009 WY 34

Docket Number: S-07-0283

Appeal from the District Court of Teton County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Plaintiffs): James R. Salisbury and Sean C. Chambers of Riske, Salisbury & Kelly, Cheyenne, Wyoming

Representing Appellee (Defendant): Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Senior Assistant Attorney General

Facts: Appellant suffered a work injury found to be compensable by the Workers’ Compensation Division. A little more than two years after his injury, he applied for permanent partial disability (PPD) benefits. By statute, Appellant would be eligible for PPD benefits if, because of his work-related injury, there were no jobs available for him in Wyoming that paid at least ninety-five percent (95%) of his prior wage. A labor market survey indicated there were no jobs available fulfilling the statutory requirements for Appellant in Wyoming. After receiving the labor market survey, the Division approached Appellant’s employer at the time of his injury. At the Division’s encouragement, the employer stated it would offer to rehire Appellant to his prior position with appropriate accommodations. Based on this assurance, and before the employer formally offered Appellant his old job, the Division denied Appellant’s application for PPD benefits. Appellant declined the job offer he eventually received from his former employer. Appellant contested the denial of his application for PPD benefits and lost after a contested case hearing. The district court affirmed the denial.

Issues: Whether the Hearing Officer committed an error of law in its application of Wyoming Statute § 27-14-405 in denying permanent partial disability benefits to Appellant. Whether the Order entered by the Hearing Officer is supported by substantial evidence. Whether the Order entered by the Hearing Officer is arbitrary and capricious and contrary to Wyoming law. Whether the Order entered by the Hearing Officer on April 27, 2007, is contrary to public policy.

Holdings: An injured worker has the burden to prove each of the elements of his claim by a preponderance of the evidence. Since Wyo. Stat. § 27-14-102(a)(xv) (2007) defines “permanent partial disability” as “the economic loss to an injured employee . . . resulting from a permanent physical impairment,” in order to be eligible for PPD benefits, a claimant must demonstrate he has suffered a loss of earning capacity due to a work-related injury. According to § 27-14-405, an injured employee awarded permanent partial impairment benefits who applies for a permanent disability award must show that because of the injury, he is unable to return to employment at a wage that is at least ninety-five percent (95%) of the monthly gross earnings the employee was earning at the time of injury, that the application for permanent partial disability was filed not before three (3) months after the date of ascertainable loss or three (3) months before the last scheduled impairment payment, whichever occurs later, but in no event later than one year following the later date, and that the employee has actively sought suitable work, considering the employee’s health, education, training and experience.
The only question in the instant appeal is whether Appellant could find employment in Wyoming at a wage that was at least ninety-five percent (95%) of his pre-injury wage. Appellant presented a labor market survey stating that Appellant, because of his work-related injury, would not be able to find a job in the general economy that paid 95% of his pre-injury wage. This is enough to constitute a prima facie case for entitlement. The Division has attempted to rebut this survey with the assertion that one job meeting the statutory requirements did exist – the position offered to Appellant by his former employer.
However, there are several problems with finding the job offer was a bona fide offer. First, the record clearly discloses the offer was based on misinformation. The employer assumed Appellant could perform 95% of the job duties of his prior position and only minor accommodations would be necessary. The employer had no access to Appellant’s worker’s compensation file and did not know about Appellant’s 7% whole body impairment rating. The employer also had not seen the Functional Capacity Evaluation limiting Appellant to medium duty work. Indeed, the letter offer makes clear the fact that the employer had no immediate knowledge of Appellant’s work restrictions. Appellant, who introduced the only evidence of the actual work requirements of his former position, testified the position regularly involved activity that exceeded his current physical ability. He believed more than minor accommodations would be necessary for him to be able to perform his prior job. Yet it is to that specific job that employer extended its employment offer to Appellant. Given the lack of concrete information and the mistaken assumptions underlying the offer, the offer can at best be considered contingent. It would be sheer speculation to assume employer would have maintained its offer to Appellant once it learned Appellant’s true functional capacity. The company’s lack of knowledge regarding Appellant’s functional capacity is unmistakable in the written offer and necessarily creates ambiguity. The only certain term is the job title. Appellant’s tasks and exact wage were to be determined based on information not currently in the company’s possession. The company stated it was willing to accommodate Appellant’s work restrictions, but no indication was given as to the nature or extent of those accommodations. In short, the written offer was devoid of information necessary for a reasonable person to be able to seriously consider the offer. Appellant cannot be faulted for not accepting such an illusory offer.

Conclusion: The order of the district court affirming the denial of Appellant’s PPD benefits is reversed. The case is remanded for the district court to order the Division to award Appellant appropriate PPD benefits.

Reversed and remanded.

J. Golden delivered the opinion for the court.

Link: http://tinyurl.com/d686cp .

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