Adams v. State ex rel. Wyoming Workers Safety and Compensation Div.

• Decision Date: 25 February 1999
• Docket Number: No. 97-335,97-335
• Citation: 975 P.2d 17
• Parties: In the Matter of the Worker's Compensation Claim of: David ADAMS, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 17

975 P.2d 17

In the Matter of the Worker's Compensation Claim of:

David ADAMS, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).

No. 97-335.

Supreme Court of Wyoming.

Feb. 25, 1999.

Donald L. Painter, Casper, for Appellant.

William U. Hill, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General, for Appellee.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, ^* JJ.

GOLDEN, Justice.

Appellant David Adams appeals the district court's affirmance of a hearing examiner's order denying his claim for an additional permanent disability award based upon loss in earnings.

We reverse and remand for a determination of award.

ISSUES

Adams presents the following issue for our review:

Whether, as a matter of law, Appellant's pre-injury wage of $6.25 per hour is comparable to his post-injury earning capacity of $5.57 per hour.

Appellee Workers' Compensation Division (Division) believes the issue is:

An injured worker received worker's compensation benefits for his physical impairment but the hearing examiner denied additional benefits for vocational disability because the worker is capable of earning a wage comparable to his pre-injury wage.

Was the hearing examiner's decision supported by substantial evidence and in accordance with law?

FACTS

Adams suffered a back injury on August 6, 1995, after which he received certain benefits for medical, hospital and other health care related expenses as well as temporary total disability and permanent partial physical impairment of 5%. At the time of the injury, Adams earned $6.25 per hour as a cook. After the injury, Adams was unable to continue as a cook and applied for a loss of earnings capacity or vocational award.

The Division referred Adams to Pamela Mills, a physical therapist at the Wyoming Performance Center, for a functional capacity examination. Adams was examined on November 21, 1996, and found to be physically capable of performing work in the sedentary category as defined by the U.S. Department of Labor. The Division also referred Adams to Roger Campbell, M.A., of CRA Managed Care, for a vocational evaluation.

He reported that Adams could perform the functions necessary to obtain jobs such as gatekeeper, hotel clerk, or an assembler of small products. Mr. Campbell contacted employers in the Casper area and determined that such jobs were available and paid an average wage of $5.57 per hour.

The Division denied benefits on the basis that the vocational evaluation stated that Adams had no vocational loss due to his injury. A hearing was held before the Office of Administrative Hearings. The hearing examiner found that Adams' own testimony and that of the evaluators indicated that Adams could return to a job as a desk clerk with a hotel or motel, which were types of jobs listed in the evaluation as available or which would soon be available; that Adams' pre-injury wage was $6.25 per hour; and the evaluation showed that the possible post-injury wage was $5.57 per hour. Based on this, the hearing examiner concluded that Adams had failed to meet his burden of proof that he was unable to return to work at a comparable or higher wage and his claim for permanent partial disability was denied. Adams appealed that denial to the district court, which affirmed the administrative action by the hearing examiner. Adams appeals that order.

DISCUSSION

It is apparent from the findings of fact and conclusions of law that the hearing examiner's focus was on determining whether Adams was able to return to work. Adams contends, however, that the sole issue is whether a post-injury wage that is 89% of one's pre-injury wage is "comparable" to the pre-injury wage, and he contends that this presents a question of law. He points out that in his particular case the wage difference between $6.25 and $5.57 equals $27,765.76 if he were to work until he retires. He argues that such a significant amount easily dispels any notion that the two wages are comparable.

At the time of the injury, the applicable statute stated:

§ 27-14-405. Permanent partial disability; benefits; schedule; permanent disfigurement; disputed ratings.

(a) and (b) Repealed by Laws 1994, ch. 86, § 3.

(c) Renumbered as (k) by Laws 1994, ch. 86, § 2.

(d) Repealed by Laws 1994, ch. 86, § 3.

(e) Renumbered as (m) by Laws 1994, ch. 86, § 2.

(f) An injured employee suffering an ascertainable loss may apply for a permanent partial impairment award as provided in this section.

(g) An injured employee's impairment shall be rated by a licensed physician using the most recent edition of the American Medical Association's guide to the evaluation of permanent impairment. The award shall be paid as provided by W.S. 27-14-403 for the number of months determined by multiplying the percentage of impairment by forty-four (44) months.

(h) An injured employee awarded permanent partial impairment benefits may apply for a permanent disability award subject to the following terms and conditions:

(i) The injured employee is because of the injury, unable to return to employment at a comparable or higher wage than the wage the employee was earning at the time of injury;

(ii) An application for permanent partial disability is 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 (1) year following the later date; and

(iii) The employee has actively sought suitable work, considering the employee's health, education, training and experience.

(j) The disability award under subsection (h) of this section shall be payable monthly in the amount provided by W.S. 27-14-403 for the number of months determined by adding the number of months computed under this subsection as follows:....

Wyo. Stat. Ann. § 27-14-405 (Michie 1997) (emphasis added).

Permanent partial disability is defined in Wyo. Stat. Ann. § 27-14-102(a)(xv) (Michie 1997) as:

(xv) "Permanent partial disability" means the economic loss to an injured employee, measured as provided under W.S. 27-14- 405(j), resulting from a permanent physical impairment; ...

The term "comparable or higher wage" is not defined in the act. The Division contends that the hearing examiner correctly ruled that Adams did not meet his burden of proof that a minimal wage reduction of sixty-eight cents is not a comparable wage. Adams contends that by showing the wages were not equal, equivalent, or similar, he met his burden of proof.

Under our statutory interpretation rules, this Court applies the plain meaning of the statute unless found to be ambiguous. Wright v. State ex rel. Wyoming Workers' Safety and Compensation Div., 952 P.2d 209, 213 (Wyo.1998). The plain meaning of "comparable" according to the dictionary is "capable of or suitable for comparison," and the word "comparison" is defined as "the representing of one thing or person as similar to or like another." Merriam Webster's Collegiate Dictionary 234 (10th ed. 1994). The Division contends that if the legislature intended that "comparable" mean "equal" it would have said so; however, our review indicates that the legislature has used the term "comparable" in seventy-seven different statutes. In one statute, the legislature defines a "comparable replacement dwelling" as "functionally equivalent" to a prior dwelling, Wyo. Stat. Ann. § 16-7-102(iii)(D) (Michie 1997), and in another defines a "comparable business" as "the same lines of insurance, same kinds of insurance, similar policy limits, similar types of risk and similar quality of business." Wyo. Stat. Ann. § 26-45-104(ii)(H) (Michie 1997). These examples indicate that the legislature has used "comparable" to mean something other than exactly equal; however, the use of terms "functionally equivalent" and "similar" are not particularly helpful without context. Black's Law Dictionary informs us that "comparable accommodations," "comparable sales" and "comparable worth" are legal terms that require an analysis to determine whether the subjects in question are sufficiently similar to be regarded as substantially equal in order to determine a particular rental amount, fair market value, or wage rate for male- and female-dominated jobs. Black's Law Dictionary 281-82 (6th ed.1990).

In resolving whether the wages are comparable, Adams showed that the pre-injury and post-injury wage figures were not the same, and in doing so, there is no question that Adams showed an "economic loss" as required under the statute. However, the hearing examiner ruled that Adams did not meet his burden of proof. What other evidence would he have shown? On what basis did the Division and the hearing examiner decide that $5.57 per hour is comparable to $6.25 per hour?

The Division urges that whether wages are comparable is a factual determination and our standard of review is whether the hearing examiner's decision is supported by substantial evidence. The New Mexico Supreme Court reversed a lower court's determination that this issue presented a question of fact in Carpenter v. Arkansas Best Corp., 112 N.M. 1, 810 P.2d 1221 (1991). That court stated:

The question whether post-injury wages plus benefits are or are not comparable to pre-injury wages is a question of law in the interpretation of the statute.... In the abstract, determining whether something is or is not comparable to something else might involve factual determinations, but in the case of this statute there are no factual issues that need to be resolved. The legislature set no guidelines or criteria for determining the issue of comparability.

Id. at 1222. The court then determined that because there was nothing in the statute to tell it what kind of factual determination was proper, it would hold that comparability is a question of law. Id. It further held "that...