Goe v. STATE EX REL. WORKER'S COMP. DIV., 00-114.
Decision Date | 22 January 2002 |
Docket Number | No. 00-114.,00-114. |
Citation | 2002 WY 6,38 P.3d 1063 |
Parties | In the Matter of the Worker's Compensation Claim of: Bryan T. GOE, Appellant (Petitioner/Employee), v. STATE of Wyoming, ex rel., WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Respondent/Objector). |
Court | Wyoming Supreme Court |
F. Gaston Gosar of Nicholas Law Office, LLC, Riverton, WY. Argument by Mr. Gosar, Representing Appellant.
Gay Woodhouse, Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General. Argument by Mr. Delicath, Representing Appellee. Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ.
[¶ 1] Appellant Bryan T. Goe, Jr. appeals from the order of the district court which affirmed the Office of Administrative Hearing's (OAH) decision to average his monthly wages and to exclude gratuities in calculating his temporary total disability (TTD) benefits.
[¶ 2] We affirm in part and reverse and remand in part.
[¶ 3] Goe presents three issues for review by this court:
[¶ 4] On October 16, 1997, while Goe was working as a hunting guide for Crystal Creek Outfitters, he was kicked in the right shin by a horse. Goe required hospitalization at least twice as a result of this injury, and both parties agree that Goe suffered from deep venous thrombosis and/or reflex sympathetic dystrophy.
[¶ 5] Goe requested TTD benefits, which were awarded through July 31, 1998. When Goe requested continued TTD benefits, an administrative hearing was conducted. The hearing examiner found that Goe was entitled to further TTD benefits and averaged Goe's earnings for the months of July through October to determine his monthly benefit amount. The hearing examiner did not include gratuities when it averaged Goe's monthly earnings. Goe appealed this decision to the district court. The district court affirmed this part of the order and reversed other portions of the order, which have not been appealed and are, therefore, not relevant to this appeal. Goe appeals the unfavorable portion of the district court's order.
[¶ 6] Typically, when this court reviews the decision of an administrative agency, we afford considerable deference to the findings of fact of the agency, and we will not disturb them unless they are contrary to the overwhelming weight of the evidence. Amoco Production Co. v. State Bd. of Equalization, 12 P.3d 668, 671 (Wyo.2000). In this instance, however, the issues presented require us to interpret various statutes. Petra Energy, Inc. v. Dep't of Rev., 6 P.3d 1267, 1270 (Wyo. 2000) (citations omitted).
[¶ 7] Goe contends that the hearing examiner improperly averaged his wages when it calculated the TTD benefit amount. He maintains that the final figure should have been calculated by using only the amount of his salary during the month in which he was injured. The Wyoming Workers' Compensation Division (the Division) responds that Goe did not have a regular monthly income; and, therefore, he did not have a fixed amount of monthly earnings from which the hearing examiner could accurately derive a benefit amount that would be representative of an actual monthly earnings amount.
[¶ 8] Had Goe been able to finish working the month of October, both he and his employer agreed that he would have earned $1,600.00. Instead of basing Goe's TTD benefit amount on this $1,600.00 figure, the hearing examiner averaged Goe's earnings using that amount as well as the amounts of his earnings for the previous three months. Goe's earnings fluctuated considerably over the course of this four-month period; and, although Goe argued the fluctuation was due to a contract dispute with his employer, the hearing examiner reasoned that an average would best reflect the amount of earnings Goe lost because of his injury.
[¶ 9] The calculation of TTD benefits is governed by Wyo. Stat. Ann. § 27-14-403(c) (Lexis 1999), which provides in pertinent part:
For temporary total disability under paragraph (a)(i) of this section, the award shall be paid monthly at the rate of two-thirds (2/3) of the injured employee's actual monthly earnings at the time of injury but not to exceed the statewide average monthly wage for the twelve (12) month period immediately preceding the quarterly period in which the injury occurred as determined pursuant to W.S. XX-XX-XXX.
The term "actual monthly earnings" is defined by Wyo. Stat. Ann. § 27-14-403(j) as "the injured employee's actual monthly earnings at the time of injury excluding any payment for casual or unscheduled overtime and any fringe benefit." Goe argues that pursuant to this definition, the hearing examiner should have used the figure he would have earned in October had he not been injured to calculate his benefit amount. The Division counters that this definition is unavailing because Goe did not have "actual monthly earnings." The Division quotes the Merriam Webster's Collegiate Dictionary, p. 755 (10th ed.1998) definition of monthly as meaning "occurring or appearing every month."
[¶ 10] Both parties acknowledge the case of Matter of Hasser, 647 P.2d 66 (Wyo.1982); but, not surprisingly, they disagree on its applicability to the case at bar. In that case, Hasser's hours fluctuated as did his rate of pay. The Division based Hasser's disability payments on an average of several weeks' wages rather than solely on the week of his injury. Because our analysis in that case is particularly appropriate to the current case, we include a lengthy excerpt from that opinion:
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