Summary 2009 WY 115

Summary of Decision issued September 17, 2009

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

Case Name: Boe v. State, ex. Rel., Wyoming Workers’ Safety and Comp. Div.

Citation: 2009 WY 115

Docket Number: S-08-0240

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Appellant Boe: Ethelyn “Lynn” Boak, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; M. Kristen Doolittle Rieman, Assistant Attorney General.

Facts/Discussion: Boe appealed from the district court’s order affirming the OAH denial for his claim for worker’s compensation benefits for failure to timely file his application for temporary total disability (TTD.)
Boe contended he was not required to apply for benefits for the period from April 2006 through December 2006 while an earlier claim was pending. Boe relied on Gerdes where the Court held that § 27-14-404(d) did not apply to claims that accrue during the pendency of a contested case. The Division relied on Alcorn in which the Court affirmed the denial of TTD benefits on the ground that Alcorn did not file a timely claim properly certified by one of his healthcare providers for the time period at issue. The Court stated that neither Gerdes nor Alcorn controlled in the instant case. The plain language of the statutes was determinative. The Court stated that Boe’s claim was not an initial claim but rather a claim for additional benefits after a prior determination in his favor involving the same injury. Section 27-14-404(d) allows an employee who had received an earlier TTD award to apply for additional benefits under § 27-14-605.

Conclusion: The OAH’s order denying Boe’s claim on the ground that it was not timely filed was reversed with instructions to vacate the order and remand to OAH for entry of an order awarding TTD benefits from April 2006 through November 2006 on the ground of increased incapacity.

Reversed.

J. Kite delivered the decision.

J. Burke dissented: The Justice dissented because he was uncomfortable with the majority’s interpretation of §§ 27-14-404 and -605. The hearing examiner and the district court never considered whether the four-year limitation period applied and the Division was not provided with the opportunity to weigh in on the issue. He was also concerned that following its interpretation, an employee would have only sixty days to file an initial claim for TTD benefits but up to four years from the date of last payment for additional benefits to file a claim for additional TTD benefits.

Link: http://tinyurl.com/km9kcs .

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