In re Osenbaugh

• Decision Date: 17 August 2000
• Docket Number: No. 99-330.,99-330.
• Citation: 10 P.3d 544
• Parties: Matter of the Worker's Compensation Claim of Kendall L. OSENBAUGH, An employee of Big O Tires Stores: Kendall L. Osenbaugh, Appellant (Petitioner), v. State of Wyoming ex rel. Wyoming Workers' Safety And Compensation Division, Appellee (Respondent).
• Court: Wyoming Supreme Court

10 P.3d 544

Matter of the Worker's Compensation Claim of Kendall L. OSENBAUGH, An employee of Big O Tires Stores:

Kendall L. Osenbaugh, Appellant (Petitioner), v. State of Wyoming ex rel. Wyoming Workers' Safety And Compensation Division, Appellee (Respondent).

No. 99-330.

Supreme Court of Wyoming.

August 17, 2000.

Representing Appellant: George Santini of Ross, Ross & Santini, LLC, Cheyenne, Wyoming.

Representing Appellee: Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Bernard P. Haggerty, Senior Assistant Attorney General.

Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL and KITE, JJ.

KITE, Justice.

Kendall L. Osenbaugh applied for modification of his award of temporary total disability (TTD) benefits on the grounds of increased incapacity. After a contested case proceeding, the Office of Administrative Hearings denied the application because Osenbaugh did not have additional surgery. We conclude the Office of Administrative Hearings incorrectly ruled that Osenbaugh's request was governed by Wyo. Stat. Ann. § 27-14-404 (Michie 1991) (amended 1993, 1994, 1995, 1996 & 2000) and not Wyo. Stat. Ann. § 27-14-605(a) (Michie 1991) (amended 1994) and, consequently, incorrectly required proof of additional surgery not reasonably contemplated before an award of permanent partial disability benefits. For this reason, we reverse and remand for findings of fact to establish whether Osenbaugh experienced an increase in incapacity of such a nature as to warrant modification of his TTD award consistent with § 27-14-605(a).

ISSUES

Osenbaugh sets forth the issue as follows:

1. Can a worker['s] compensation claimant be awarded temporary total disability benefits pursuant to § 27-14-605, W.S.1977 (1991 Repl.) without undergoing additional surgery following an award of permanent partial disability benefits as required by § 27-14-404(b), W.S.1977 (1991 Repl.)?

A. Did the hearing officer err as a matter of law by misapplying the provisions of § 27-14-404(b) and 605, W.S. 1977 (1991 Repl.)?

B. Did the hearing officer misapply this Court's holding in Casper Oil Company v. Evenson, 888 P.2d 221 (Wyo. 1995)?

The Wyoming Workers' Safety and Compensation Division (the division) states the issues in the following form:

I. The Employee failed to object to the denial of his temporary total disability claim. Was his petition to modify barred by the Act?

II. The Employee sought additional temporary total disability benefits without having undergone additional surgery. Was the denial of additional benefits in accordance with law?

III. If the Hearing Examiner's decision was contrary to law, should the Court remand for findings of fact?

Osenbaugh presents these additional issues in his reply brief:

Osenbaugh believes that the following additional issues have been raised as a result of the arguments made by the Wyoming Workers' Safety and Compensation Division in [its] brief:

1. Was the issue of reopening and modification of Osenbaugh's worker['s] compensation case to obtain additional temporary total disability benefits from the date of his pro se petition to reopen before the Office of Administrative Hearings for contested case determination?

2. Did Osenbaugh, by failing to file a timely objection to the denial of his claim for temporary total disability benefits for the months of March and April of 1999, waive his right to file future claims for temporary total disability pursuant to § 27-14-605 W.S.1977 (1998 Repl.)?

FACTS

On November 11, 1991, Osenbaugh was injured at work as a tire changer and apprentice mechanic for Big O Tire Stores and, as a result, underwent spinal fusion surgery. He received worker's compensation benefits including TTD benefits and a thirteen percent physical impairment award. Thereafter, Osenbaugh received an additional thirty-seven percent permanent partial disability award for a total permanent partial disability award of fifty percent. In 1997, with assistance from the Division of Vocational Rehabilitation, he commenced work as a management trainee for Nurse Connection of Wyoming, Inc. Osenbaugh's employer made accommodations to assist him with his continuing problems with pain and depression.

In February 1999, by mutual agreement with his employer that his ongoing physical impairments prevented him from performing his job, Osenbaugh ceased work. On April 2, 1999, he filed a claim for TTD benefits for the period of March 1, 1999, through April 30, 1999. On April 7, 1999, the division entered a final determination denying Osenbaugh's claim on the basis he did not undergo additional surgery after his original permanent partial disability award. Osenbaugh did not file an objection to this determination, rather, he filed a letter dated May 6, 1999, requesting his case "# XX-XX-XXXX[be] reopened and modified." On May 20, 1999, the division referred the matter to the Office of Administrative Hearings for a contested case proceeding, and the matter was set for hearing. On June 18, 1999, Osenbaugh filed a formal petition to reopen and modify pursuant to § 27-14-605(a).

At the hearing held August 17, 1999, Osenbaugh conceded that his failure to timely respond to the division's April 7, 1999, final determination notice barred him from receiving TTD benefits for the period of March 1, 1999, through April 30, 1999. Upon stipulation of counsel, the hearing proceeded on the issue of the May 6, 1999, petition to reopen and modify pursuant to § 27-14-605(a). At hearing, it was Osenbaugh's contention that he had experienced an increased incapacity due to his work related injuries which rendered him totally temporarily disabled.

The Office of Administrative Hearings issued an Order Denying Benefits on September 7, 1999, because it determined that further surgery was required pursuant to § 27-14-404 and that § 27-14-605(a) was inapplicable. Osenbaugh appealed to the district court which certified the case to this Court pursuant to W.R.A.P. 12.09(b).

STANDARD OF REVIEW

Resolution of this case requires construction and interpretation of statutes which are questions of law, and the well established standard of review was recently restated in Sell v. State ex rel. Wyoming Workers' Safety and Compensation Division, 7 P.3d 1, 3 (Wyo.2000) (quoting Wright v. State ex rel. Wyoming Workers' Safety and Compensation Division, 952 P.2d 209, 211 (Wyo.1998)

), as follows:

"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. Tenorio v. State ex rel. Wyoming Workers' Compensation Div., 931 P.2d 234, 237 (Wyo.1997); Claim of Nielsen, 806 P.2d 297, 299 (Wyo.1991). Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Matter of Corman, 909 P.2d 966, 970 (Wyo.1996); Aanenson v. State ex rel. Wyoming Workers' Compensation Div., 842 P.2d 1077, 1079 (Wyo.1992). 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. Matter of Gneiting, 897 P.2d 1306, 1308 (Wyo.1995); City of Casper v. Haines, 886 P.2d 585, 587 (Wyo. 1994)."

When addressing a question of law requiring statutory interpretation, the standard of review is equally settled as set out in Platte Development Company v. State Environmental Quality Council, 966 P.2d 972, 974 (Wyo.1998):

Our review of statutory 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).

DISCUSSION

A. Was the Petition to Modify Barred by Failure to Appeal Denial of Temporary Total Disability for a Different Time Frame?

The division argues Osenbaugh's petition to reopen and modify was barred due to his failure to timely object to its final determination of his April 2, 1999, TTD claim as required by Wyo. Stat. Ann. § 27-14-601(k)(vi) (LEXIS 1999). The April 2, 1999, TTD claim was for the period of March 1, 1999, through April 30, 1999. It is undisputed Osenbaugh did not request a hearing on the division's final determination denying his claim for that two-month time frame. "The statute is crystal clear: Once a final determination is made, a party must object and request a hearing or the determination of compensability is not subject to any further administrative or judicial review. Wyo. Stat. Ann. § 27-14-601(k)(vi) (LEXIS 1999)." Pacificorp v. Todd, 1 P.3d 1216, 1219 (Wyo. 2000).

However, on May 6, 1999, Osenbaugh submitted a letter requesting his case "# XX-XX-XXXX[be] reopened and modified." (Emphasis added.) This initial petition was expanded and clarified upon counsel's filing of a more formal pleading on June 18, 1999, entitled "Petition to Reopen and Modify." Initially, the petition requested benefits from March 1, 1999, until such time as he qualified for an additional award of permanent partial or permanent total disability benefits. However, at the hearing, Osenbaugh conceded he was barred from again requesting TTD benefits for the March 1, 1999, through April 30, 1999, time period. In the Order Denying Benefits issued September 7, 1999, this claim period was dismissed, and Osenbaugh has not...