In re Boe

• Decision Date: 17 September 2009
• Docket Number: No. S-08-0240.,S-08-0240.
• Citation: 2009 WY 115,216 P.3d 494
• Parties: In the Matter of the Worker's Compensation Claim of Alan D. BOE, An Employee of Jim Bridger Power Plant. Alan D. Boe, Appellant (Petitioner), v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).
• Court: Wyoming Supreme Court

216 P.3d 494

2009 WY 115

In the Matter of the Worker's Compensation Claim of Alan D. BOE, An Employee of Jim Bridger Power Plant Alan D. Boe, Appellant (Petitioner), v. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).

No. S-08-0240.

Supreme Court of Wyoming.

September 17, 2009.

Representing Appellant: Ethelyn "Lynn" Boak, Cheyenne, Wyoming.

Representing Appellee: 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.

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

KITE, Justice.

[¶ 1] Alan D. Boe appeals from the district court's order affirming the Office of Administrative Hearings' (OAH) denial of his claim for worker's compensation benefits for failure to timely file his application for temporary total disability (TTD) benefits. He claims that he was excused from filing the application because an OAH decision was pending on an earlier claim he filed involving the same injury. Alternatively, he asserts that the Workers' Safety and Compensation Division (Division) should be estopped from denying him benefits by its failure to request recertification despite knowing that he had returned to TTD. We reverse, although on different grounds than those asserted by Mr. Boe.

ISSUE

[¶ 2] Mr. Boe presents the following issue for this Court's consideration:

Was the Denial of Temporary Total Disability Benefits for failure to file a new application for TTD in accordance with the law?

The State rephrases the same issue.

FACTS

[¶ 3] Mr. Boe injured his right arm on May 27, 2005, while working at the Jim Bridger Power Plant near Point of Rocks in Sweetwater County, Wyoming. He continued to work until June 14, 2005, when orthopedist Nick DiGiovine diagnosed his condition as an injury to his right ulnar nerve with some medial and lateral epicondylitis ("tennis elbow"), and restricted him from work. Mr. Boe then applied for worker's compensation benefits. The Division initially took the position that the injury was not compensable and denied the claim. The Division later withdrew its objection and the OAH set for hearing the matter of Mr. Boe's entitlement to TTD benefits.

[¶ 4] In the meantime, on June 30, 2005, Dr. DiGiovine had released Mr. Boe to work with the limitation that he was not to lift more than eleven to twenty-five pounds. The lifting restriction remained in effect through August, when Dr. DiGiovine determined Mr. Boe could not work even with the restriction and ordered additional medical tests. Dr. DiGiovine then certified that Mr. Boe was unable to work until December 15, 2005. On that date, he released him to return to full duty work.

[¶ 5] Despite the release to return to work, Mr. Boe continued to have problems with his right arm and, in April of 2006, Dr. DiGiovine placed him back on restricted duty. Mr. Boe did not file a claim for further TTD benefits allegedly because a Division claims analyst told him there was nothing the Division could do until his earlier claim was decided. On August 29, 2006, the OAH awarded him TTD benefits retroactively for the period beginning June 30, 2005, through December 14, 2005, the date Dr. DiGiovine had released him to return to full duty work.

[¶ 6] The present matter began on January 29, 2007, when Mr. Boe filed an application for TTD benefits for the period from April 13, 2006 through December 14, 2006. The Division denied the claim for the period from April 13 to November 30, 2006, on the ground that Mr. Boe failed to timely file for TTD benefits for that period.¹ Mr. Boe requested a hearing. After the hearing, the OAH upheld the denial, finding that his failure to timely file for TTD benefits was not excused by the fact that his earlier claim was pending. The OAH also rejected his claim that the Division should be estopped from denying his claim because it knew he had returned to TTD but had not requested recertification. Mr. Boe filed a petition for review of the OAH decision in district court. The district court affirmed the OAH, and he appealed to this Court.

STANDARD OF REVIEW

[¶ 7] The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are questions of law. Alcorn v. Sauer Drilling Co., 2006 WY 15, ¶ 6, 126 P.3d 924, 925 (Wyo. 2006). We apply a de novo standard when reviewing questions of law. Id. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Id. We afford no deference to the agency's determination, and will correct any error made by the agency in interpreting or applying the law. Id. We also afford no deference to the district court's decision, but review this case as if it had come directly to this Court from the agency. Id.

DISCUSSION

[¶ 8] Mr. Boe contends that he was not required to apply for benefits for the period from April 13, 2006 through December 14, 2006, while his earlier claim was pending. He cites State ex rel. Wyo. Workers' Comp. Div. v. Gerdes, 951 P.2d 1170 (Wyo.1997) as support for his contention. In Gerdes, the claimant received TTD benefits from the time of her injury in 1993 until June 7, 1995, when her physician certified that she had reached maximum medical improvement. The Division notified Ms. Gerdes that her TTD benefits were terminated as of June 7, 1995. She objected and, following a hearing, the OAH awarded her TTD benefits retroactively for the period from June 7, 1995, until the hearing and continuing benefits until she could undergo recommended surgery. The Division objected, contending that she had not filed claims for benefits during the pendency of the contested case pursuant to § 27-14-404(d). The OAH rejected the argument and awarded the benefits. The Division appealed to this Court and we affirmed the OAH. Noting that the provision was silent regarding the procedural requirements for continuing benefits, we concluded that § 27-14-404(d) did not apply to claims that accrue during the pendency of a contested case. Mr. Boe contends the same reasoning applies here and he was not required to apply for additional TTD benefits while his contested case was pending.

[¶ 9] The Division asserts that Gerdes is factually different, and therefore not controlling. The Division relies on Alcorn, ¶ 13, 126 P.3d at 927-28, in which this Court affirmed the denial of TTD benefits on the ground that Mr. Alcorn did not file a timely claim properly certified by one of his healthcare providers for the time period at issue. In contrast to the claim in Gerdes, Mr. Alcorn's claim for retroactive TTD benefits was an initial, rather than a continuing, claim. We concluded the statutes were not silent regarding the procedural requirements for filing an initial TTD claim. We said:

The unambiguous language of the pertinent statutes and rules requires timely filing of the TTD claim and certification by a healthcare provider. A claimant's failure to file a timely claim limits the Division's opportunity to effectively monitor and evaluate a claimant's entitlement to TTD benefits. The failure to properly file an initial TTD claim also undermines an employer's right to offer light duty work to the employee in lieu of TTD benefits.

Id. Just as Mr. Alcorn's claim for TTD benefits was untimely, the Division argues, so was Mr. Boe's claim.

[¶ 10] We conclude that neither Gerdes nor Alcorn is controlling under the facts of Mr. Boe's case; rather, the plain language of § 27-14-404(d) and Wyo. Stat. Ann. § 27-14-605(a) (LexisNexis 2007) is determinative. Section 27-14-404 provides in pertinent part as follows:

§ 27-14-404. Temporary total disability; benefits; determination of eligibility; . . .; period of certification limited; temporary light duty employment

(a) 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). The period for receiving a temporary total disability award under this section for injuries resulting from any one (1) incident or accident shall not exceed a cumulative period of twenty-four (24) months, except that the division pursuant to its rules and regulations and in its discretion may in the event of extraordinary circumstances award additional temporary total disability benefits. . . .

. . . .

(c) Payment under subsection (a) of this section shall cease prior to the expiration of the twenty-four (24) month maximum period specified under subsection (a) of this section if:

(i) Recovery is complete to the extent that the earning power of the employee at a gainful occupation for which he is reasonably suited by experience or training is substantially restored; or

. . . .

(d) Disability payments under this section shall not be allowed for the first three (3) days of disability unless the incapacity extends beyond eight (8) days. If payments cease for a period of eight (8) days or more, the employee may apply for reinstatement under W.S. 27-14-605 and any award granted shall be treated as an initial award. . . . Benefits under subsection (a) of this section shall not be paid if:

(i) An employee or his personal representative fails to file a claim for benefits within thirty (30) days after the first day immediately succeeding the first thirty (30) days of any certified period of temporary total disability;

(ii) A claim is filed without the signature of the claimant and certification by the attending health care provider; . . .

. . . .

(g) Only a health care provider may certify temporary total disability under this act. The length of time of the initial certification or recertification of temporary total disability shall be established...