Summary 2013 WY 86

Summary of Decision, July 16, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: NICHOLAS A. PICOZZI v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0254

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County the Honorable John R. Perry, Judge

Representing Appellant: James C. Worthen of Murane & Bostwick, LLC, Casper, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy
Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: July 16, 2013

Facts: Nicholas Picozzi, the appellant, injured his neck in a compensable work-related accident. After receiving temporary total disability benefits for thirty-six months, the appellant underwent shoulder surgery. The appellant applied to the Wyoming Workers’ Safety and Compensation Division (Division) for additional benefits, arguing that the shoulder injury was a second compensable injury and he, therefore, was entitled to a separate period of benefits. Although the Office of Administrative Hearings (OAH) agreed, the district court rejected that argument. The appellant now appeals that decision and also argues in the alternative that equitable estoppel prohibits enforcement of the thirty-six month limitation.

Issues: Did the OAH hearing examiner err as a matter of law by granting the appellant’s application for temporary total disability benefits? Is the Division equitably estopped from enforcing the thirty-six month limitation on receipt of temporary total disability benefits?

Holdings: The appellant received temporary total disability benefits for thirty-six months as a result of work-related injury to his neck. After the thirty-six months expired, the appellant underwent shoulder surgery. Because the appellant’s shoulder injury was a result of the same accident that caused his neck injury, he is not entitled to an additional period of benefits. Equitable estoppel does not prevent the enforcement of the thirty-six month limitation because the appellant did not detrimentally rely upon an action by the Division. We affirm the district’s court’s decision, finding that the appellant was not entitled to further benefits.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 75

Summary of Decision June 18, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF:DANIEL L. DECKER v. STATE OF WYOMING, ex rel., WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-12-0250

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County, Honorable Dan R. Price, Judge

Representing Appellant (Plaintiff/Defendant): William G. Hibbler of Bill G. Hibbler P.C., Cheyenne, Wyoming.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: June 18, 2013

Facts: Daniel L. Decker, the appellant, applied for a permanent partial disability award. The Wyoming Worker’s Safety and Compensation Division’s (Division) denial of that application was upheld by the Office of Administrative Hearings (OAH) on the basis that the appellant failed to show that he was unable to return to work at a wage at least 95% of his earnings at the time of his injury. The district court affirmed the OAH’s decision, albeit based on a different assessment of the appellant’s ability to earn a living in the aftermath of his injury.

Issues: Was the OAH’s decision supported by substantial evidence and was the decision properly supported by the law?

Holdings: The appellant is appealing his denial of an award of permanent partial disability benefits for failure to show that he is unable to earn at least 95% of his pre-injury wage. There is substantial evidence in the record that supports the OAH’s finding that he earned $3,496.65 per month at the time of his injury. The OAH did misapply the law by comparing this figure to a “snapshot” of the appellant’s post-injury earning history. The appellant has spent the seven years prior to his application for permanent partial disability benefits employed in a position that relies upon his extensive experience and expertise as a sheet metal worker. This period therefore represents the appellant’s true ability to earn a living following his disability. Because he earned an average of $3,546.68 per month over this period, which is more than he earned prior to his injury, the appellant cannot show that he is unable to return to work at a wage at least 95% of his pre-injury wage. We affirm.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 94

Summary of Decision July 3, 2012


Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIMS OF: RYAN DORMAN, AN EMPLOYEE OF MELEHES BROTHERS, INC., v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-11-0292

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Teton County, Honorable Timothy C. Day, Judge

Representing Appellant (Plaintiff/Defendant): Sean W. Scoggin of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General
Date of Decision: July 3, 2012
Facts: This appeal arises out of Ryan Dorman’s petition for an extension of his worker’s compensation temporary total disability (TTD) benefits and for reimbursement of travel expenses incurred in travelling from Idaho to Cheyenne, Wyoming, to obtain medical care. The Wyoming Workers’ Compensation Division (Division) denied those benefits, and that denial was upheld by the Office of Administrative Hearings (OAH) and the district court.

Issues: Ryan Dorman (Dorman) presented the following issues on appeal:

I. Whether the Office of Administrative Hearing’s decision and affirmation thereof by the district court, that Mr. Dorman is not entitled to receive additional temporary total disability benefits was arbitrary and capricious, as well as not supported by the substantial evidence presented at the hearing and case law.

II. Whether the Office of Administrative Hearing’s decision and affirmation thereof by the district court that Mr. Dorman is not entitled to reimbursement for travel to and from visits with Dr. Beer was arbitrary and capricious and not supported by the substantial evidence presented at the hearing and case law.

Holdings: The OAH conclusion that Dorman had not shown by clear and convincing evidence that he was entitled to extended TTD benefits was supported by substantial evidence and was in accordance with law. Likewise, its conclusion that Dorman had not met his burden of showing that he was seeking treatment from the closest available health care provider and was thus entitled to reimbursement of travel expenses was also supported by substantial evidence and in accordance with law. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 99

Summary of Decision issued August 19, 2008

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

Case Name: Nagle v. State, ex rel. Wyoming Workers' Safety and Compensation Division

Citation: 2008 WY 99

Docket Number: S-07-0222

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant: Sean W. Scoggin of Tiedeken & Scoggin, PC, Cheyenne, Wyoming.

Representing Appellee: 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/Discussion: In 1987, Nagle suffered an open fracture, dislocation and crush injury to the first, second and fourth metatarsals of his left foot. Since then, he has continued to experience worsening medical complications, which he claims can be traced to that injury.
Permanent Total Disability under the Odd Lot Doctrine: The Court stated it would apply their recently revised standard of review. The Court also noted its opinion in Cardin v. Morrison-Knudsen where they adopted a definition of the “odd-lot doctrine” as providing permanent total disability to those workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well known branch of the labor market. Nagle’s two claims, one for permanent disability and a second for benefits associated with his second compensable injury were referred to the Medical Commission. The Commission did not look at the case under the strictures of the odd lot doctrine but rather took a narrow view of what constitutes “permanent total disability” and disregarded Nagle’s evidence and the burden of proof that largely fell to the Division and the employer. The record irrefutably established that the degree of Nagle’s obvious impairment, coupled with his mental capacity, education, training, and age, clearly placed him prima facie in the odd lot category. The burden shifted to the Division to present evidence that some special work of a light or sedentary nature was actually available to him. The Court concluded that when all the evidence was considered in context, the only sustainable conclusion was that Nagle was permanently disabled from doing work at any gainful occupation for which he was reasonably suited by experience and training.
Nagle’s Fall Injuries and the Second Compensable Injury Rule: The Court stated that the standard of review to be applied here was well summarized in Alvarez v. State. With respect to the injuries Nagle suffered in his stumble and fall, Nagle’s report was plausible in every respect. There was no basis for disbelieving his testimony. There was likewise no factual circumstance contained in the record that would disallow application of the second compensable injury rule.

Holding: The order of the district court affirming the Medical Commission was reversed and remanded to the district court with directions that it further remand the case to the Medical Commission with directions that it award permanent total disability benefits to Nagle. In addition, it shall direct the Medical Commission to order that Nagle be paid benefits for the injuries he suffered to his wrist and hip when he fell because of his gait/walking instability associated with his original injuries.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/6hvzxe .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 192

Summary of Decision issued December 11, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Yother v. State

Citation: 2007 WY 192

Docket Number: S-07-0041

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

Representing Appellant (Petitioner): David M. Gosar, Jackson, Wyoming.

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

Issues: Whether the order denying permanent partial disability benefits was supported by substantial evidence and/or was the decision arbitrary and capricious. Specifically, did the OAH err when it failed to consider Yother’s overtime earnings in its calculations, and consequently, mistakenly conclude that jobs were available paying a comparable amount to his pre-injury employment earnings. Whether the OAH erred as a matter of law when it concluded that Yother could return to work at a comparable wage to the wage he was earning at the time of injury.

Facts/Discussion: After sustaining a work related injury, Yother applied for worker’s compensation benefits. The Division awarded him medical, temporary total disability and impairment benefits. Later, after undergoing surgery, he applied for permanent partial disability benefits. The Division denied the claim. Yother had a hearing with OAH who affirmed the denial. He then appealed to the district court which also affirmed the denial.
Standard of Review: In an appeal from a district court’s decision on a petition for review of administrative action, the Court affords no deference to the district court’s decision and instead reviews the case as if it came directly from the agency.
The Court’s review of the record disclosed two difficulties with the hearing examiner’s findings and conclusions. The findings and conclusions do not explain why the hearing examiner disregarded Yother’s claim that he was earning $14.12 per hour at the time of his injury. Also, it appeared from the record that the hearing examiner’s finding that Yother was earning $12.25 per hour at the time of his injury was based on the vocational evaluator’s miscalculation.

Holding: The failure of any essential finding to be supported by substantial evidence results in an arbitrary and capricious decision and must be reversed. The Court has the authority to adjust factual findings based on the overwhelming evidence in the record and to correct errors of law. Based upon undisputed evidence in the record, the information received from the employer showed that Yother was earning $14.10 per hour rather than the $12.25 calculated by the vocational evaluator. Thus the hearing examiner’s conclusion that Yother failed to meet his burden of proving that no jobs were available at a comparable or higher wage was arbitrary and capricious and not supported by substantial evidence.

Reversed and remanded.

J. Kite delivered the opinion.

Link: http://tinyurl.com/3yld7x .