Bailey v. State ex rel. Wyo. Workers' Safety and Comp. Div.

• Decision Date: 23 November 2010
• Docket Number: No. S-10-0051.,S-10-0051.
• Citation: 243 P.3d 953,2010 WY 152
• Parties: Diane BAILEY, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

243 P.3d 953

2010 WY 152

Diane BAILEY, Appellant (Petitioner),

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

No. S-10-0051.

Supreme Court of Wyoming.

Nov. 23, 2010.

Representing Appellant: Stephenson D. Emery of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

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

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

KITE, Chief Justice.

[¶ 1]Diane Bailey appeals from the district court's order affirming the Office of Administrative Hearing's (OAH) denial of her claim for temporary total disability (TTD) benefits.We conclude the OAH correctly determined that Ms. Bailey failed to file a proper health care provider certification when she applied for TTD benefits and, under the relevant statutes and agency rule, she is not entitled to benefits.

[¶ 2]We affirm.

ISSUES

[¶ 3] Ms. Bailey presents a single issue on appeal:

Did the Office of Administrative Hearings ... act arbitrarily and capriciously, and contrary to law, in denying payment of temporary total disability benefits ("TTD") to Appellant, Diane Bailey("Bailey"), even though she was "temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which [s]he [was] reasonably suited by experience or training?"Wyo. Stat. § 27-14-102(a)(xviii).

State of Wyoming ex rel., Wyoming Workers' Safety and Compensation Division(Division) states two issues on appeal:

I.Is the hearing officer's determination denying Appellant's requested temporary total disability ("TTD") benefits because Appellant failed to properly submit a completed TTD certification form, signed by her physician, arbitrary, capricious, or otherwise not in accordance with Wyoming law?

II.Does substantial evidence support the hearing officer's determination that Appellant failed to follow the procedural requirements for filing a TTD claim and that, therefore, her request for TTD benefits should be denied?

FACTS

[¶ 4] Ms. Bailey injured her right shoulder in November 2007, while working as a welder's helper for Gregory & Cook Construction, Inc.She was examined by a physician's assistant at Rawlins Urgent Care on December 18, 2007.The physician's assistant restricted her from overhead work and lifting more than 5 pounds.After working for a few more days, she returned home to Michigan.Ms. Bailey was examined by family physician, Dr. D. Dotson, on December 26, 2007.Dr. Dotson filled out a "Return to Work/School Statement" which stated that Ms. Bailey was not to perform any work until she was seen by an orthopedic physician.

[¶ 5] Ms. Bailey faxed a report of injury and eighteen page letter to the Division on January 2, 2008.She also asserted that she submitted an application for TTD benefits at the same time, although the application in the record was not stamped as "received" by the Division and the Division argued there was no evidence that it received the application.The application was filled out only by Ms. Bailey; her physician did not complete the "Health Care Provider's Certification" part of the document or sign it.

[¶ 6] Ms. Bailey saw Rhonda Whelan, D.O. on January 24, 2008.Dr. Whelan ordered a right shoulder arthrogram, which was completed on February 21, 2008.The test indicated that Ms. Bailey had a partial rotator cuff tear, labral tear, impingement syndrome and adhesion capsulitis in her right shoulder, and Dr. Whelan determined that surgery was indicated.On February 28, 2008, Dr. Whelan's office completed a "Disability Certificate," indicating that Ms. Bailey "is to be off work as of today (2-28-08) through 3 months after surgery.Pt's surgery date is 4-23-08."

[¶ 7] Ms. Bailey had surgery on April 23, 2008, and subsequently began physical therapy.Dr. Whelan completed another disability certificate on August 4, 2008, indicating that Ms. Bailey would continue to be off work for another two months.On September 9, 2008, Dr. Whelan filled out a form for Ms. Bailey's private disability insurance, which stated that Ms. Bailey still could not work.

[¶ 8] The Division initially denied coverage, but later agreed that Ms. Bailey's injury was compensable and paid her medical claims.The Division did not, however, award her TTD benefits, asserting that she had not filed a proper application for benefits.The OAH held a contested case hearing on November 4, 2008.The OAH ruled there was no evidence that Ms. Bailey filed her application for TTD benefits with the Division on January 2, 2008, as she claimed and, in any event, she was not entitled to benefits because her application did not contain a health care provider's certification.Ms. Bailey filed a petition for judicial review with the district court, and that court determined the OAH finding that there was no evidence Ms.Bailey filed her application was not supported by substantial evidence because she testified repeatedly that she faxed it to the Division on January 2, 2008.The district court, nevertheless, upheld the OAH decision denying benefits because her application did not contain a proper certification from her health care provider.Ms. Bailey appealed to this Court.

STANDARD OF REVIEW

[¶ 9]This case requires interpretation of worker's compensation law, necessitating application of the following standard of review:

The interpretation and correct application of the provisions of the Wyoming Workers' Compensation Act is a question of law over which our review authority is plenary.Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law.We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law.

Osenbaugh v. State ex rel. Wyoming Workers' Safety & Comp. Div.,10 P.3d 544, 547-48(Wyo.2000)(citations omitted).See also, Boe v. State ex rel. Wyoming Workers' Safety & Comp. Div.,2009 WY 115, ¶ 7, 216 P.3d 494, 496(Wyo.2009).Similarly, interpretation of the agency rules and regulations implementing statutory directives is a question of law, reviewed de novo.SeePowder River Basin Resource Council v. Wyoming Dep't of Environmental Quality,2010 WY 25, ¶ 6, 226 P.3d 809, 813(Wyo.2010).

DISCUSSION

[¶ 10] The OAH's decision denying TTD benefits did not focus on whether Ms. Bailey met the definition of TTD under Wyo. Stat. Ann. § 27-14-102(a)(xviii)(LexisNexis 2009), i.e., whether she was "temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which [she was] reasonably suited by experience or training."Instead, it ruled that the procedural deficiencies in her application for benefits warranted denial of her claim.Resolution of this issue requires us to interpret the relevant statutes and administrative agency rules.

[S]tatutory interpretation begins with an inquiry into the ordinary and obvious meaning of the words employed by the legislature according to the manner in which those words are arranged.[ Parodi v. Wyoming Department of Transportation,947 P.2d 1294, 1295(Wyo.1997) ];Sheridan Commercial Park, Inc. v. Briggs,848 P.2d 811, 815(Wyo.1993).If more than one reasonable interpretation exists, we resort to general principles of statutory construction.Moncrief v. Wyoming State Bd. of Equalization,856 P.2d 440, 444(Wyo.1993)(quoting Parker Land and Cattle Co. v. Wyoming Game and Fish Com'n,845 P.2d 1040, 1044(Wyo.1993)).When the legislature has spoken in unambiguous terms, however, "we are bound to the results so expressed."State ex rel. Wyoming Workers' Compensation Div. v. Bergeron,948 P.2d 1367, 1369(Wyo.1997).

Osenbaugh,10 P.3d at 548, quotingPlatte Development Co. v. State Environmental Quality Council,966 P.2d 972, 974(Wyo.1998).We apply the same strategies in interpreting agency rules and regulations.See Powder River,¶ 6, 226 P.3d at 813.

[¶ 11] In addition to the definition of TTD quoted above, several other statutes are relevant to our inquiry.Wyo. Stat. Ann. § 27-14-404(a)(LexisNexis 2009) states in pertinent part:

If after a compensable injury is sustained and as a result of the injury the employee is subject to temporary total disability as defined under W.S. 27-14-102(a)(xviii), the injured employee is entitled to receive a temporary total disability award for the period of temporary total disability as provided by W.S. 27-14-403(c).

Wyo. Stat. Ann. § 27-14-404(d)(LexisNexis 2009) sets out procedural requirements for filing a TTD claim and states in relevant part: "Benefits under subsection (a) of this section shall not be paid if ... (ii) A claim is filed without the signature of the claimantand certification by the attending health care provider[.]"

[¶ 12]Wyo. Stat. Ann. § 27-14-501(b)(LexisNexis 2009) requires a "health care provider [to] examine the employee before certification and ... without charge file a written report with the division....The report shall specify reasons for temporary total disability or continued temporary total disability."Subsection (e) of § 27-14-501 states:

An initial claim for temporary total disability benefits under W.S. 27-14-404 and any subsequent claim for temporary total disability following the initial period of certification shall be filed with the division and the division shall transmit a copy of the initial claim to the employer.Failure to file a claim for temporary total disability in accordance with W.S. 27-14-404(d) shall result in denial of the claim.

Finally, Wyo. Stat. Ann. § 27-14-601(e)(LexisNexis 2009) directs the Division to "by rule and regulation establish necessary procedures for the review and settlement of ... claims filed under this act through interviews with employees, employers and health care personnel or through review of written reports."

[¶ 13] To that...