Serda v. STATE EX REL. WORKERS'SAFETY & COMP. DIV.

• Decision Date: 14 March 2002
• Docket Number: No. 01-29.,01-29.
• Citation: 2002 WY 38,42 P.3d 466
• Parties: Sonjia SERDA, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
• Court: Wyoming Supreme Court

42 P.3d 466

2002 WY 38

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

No. 01-29.

Supreme Court of Wyoming.

March 14, 2002.

George Santini of Ross, Ross & Santini, LLC, Cheyenne, WY, Representing Appellant. Argument by Mr. Santini.

Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee. Argument by Mr. Delicath.

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

HILL, Justice.

[¶ 1] Appellant, Sonjia Serda (Serda), challenges the October 16, 2000 order of the Medical Commission (Commission), which denied a portion of her attorney's claim for costs and expenses necessarily and reasonably incurred in preparation for her hearing before the Commission. Appellee, Wyoming Workers' Safety and Compensation Division (Division), contends that the Commission properly denied Serda's claim in accordance with its rules, as well as governing statutes. On November 1, 2000, Serda filed a petition for review in district court pursuant to W.R.A.P. 12.03. On December 12, 2000, the district court certified the matter to this Court for review under authority granted by W.R.A.P. 12.09.

[¶ 2] We affirm.

ISSUES

[¶ 3] Serda raises these issues:

1. Did the Medical Commission act arbitrarily and capriciously in failing to follow its own rules of practice and procedure in denying Appellant's claim for reimbursement of medical fees expended during the preparation of her claim for contested case hearing?

2. Did the Medical Commission err as a matter of law in its interpretation of §§ 27-14-405(g) and (m) and 27-14-604, W.S.1977 (1998 Repl.) in denying payment for the costs of a third physical impairment rating performed at Appellant's request during the pendency of [the] contested case proceedings?

The Division rephrases those issues somewhat:

I. Did the Medical Commission correctly follow its own rules in declining to order the Division to pay for Appellant's third impairment rating?

II. Did the Medical Commission comply with Wyo. Stat. Ann. § 27-14-405(g) & (m) in declining to order the Division to pay for Appellant's third impairment rating?

FACTS

[¶ 4] Serda's claim for worker's compensation benefits began in August of 1996, when she injured her right elbow while at work in Cheyenne. She received worker's compensation benefits for that injury and, after a substantial period of conservative treatment, underwent surgery on January 27, 1998. Serda continued therapy for many months after the surgery and was deemed by her treating physician to have reached maximum medical improvement on May 21, 1998. Serda continued to experience significant pain and continued treatment for that problem.

[¶ 5] Wyo. Stat. Ann. § 27-14-405(f) (LexisNexis 2001) provides: "An injured employee suffering an ascertainable loss may apply for a permanent partial impairment award as provided in this section." Section 27-14-405(g) provides: "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 record does not reflect that Serda made an application for a permanent partial impairment award; however, on July 24, 1998, the Division sent Serda to Gem City Bone & Joint for the purpose of undergoing an impairment evaluation. The report of that evaluation is detailed, but it suffices for purposes of this appeal to note that the report was sent to the Division and set Serda's impairment rating at 0%. Sections 27-14-405(f) and (g) are not specific as to how the selection of the physician whose examination will initiate this process is made, but the Division's rules flesh this out. Chapter 5, section 3(c)(ii) provides:

(c) Initial Claim for Permanent Partial Impairment (PPI) Benefits.

....

(ii) Applications for PPI Award. If the treating physician determines that the injury has resulted in a permanent impairment according to the American Medical Association's Guide to the Evaluation of Permanent Impairment or its successor, the treating physician shall notify the Division in writing. The Division shall file the written documentation of permanent impairment, copying all parties. Based upon the rating given by the treating physician, the worker may apply with the Division for the appropriate award, pursuant to W.S. §§ 27-14-405 or 406.

3 Weil's Code of Wyoming Rules, Department of Employment, Workers' Compensation Rules, Regulations and Fee Schedule, Chapter 5, Section 3. Claims for Benefits, 025 220 001-13 (2001). Serda's treating physician was B.F. Magsamen, M.D., of Fort Collins, Colorado, and no determination was made by him, nor did he submit written documentation of an impairment rating. The record does not reflect that Serda made any objection to this procedure, either at this point in the proceedings, or later when she was actually represented by counsel. Wyo. Stat. Ann. § 27-14-405(m) (LexisNexis 2001) provides:

(m) If the percentage of physical impairment is disputed, the division shall obtain a second opinion and if the ratings conflict, shall determine the physical impairment award upon consideration of the initial and second opinion. Any objection to a final determination pursuant to this subsection shall be referred to the medical commission for hearing by a medical hearing panel acting as hearing examiner pursuant to W.S. XX-XX-XXX.

[¶ 6] When Serda received notice of the 0% rating, she objected. It is clear that Wyo. Stat. Ann. § 27-14-405(m) authorizes the Division to obtain a second opinion so as to counter that evaluation brought forward by the worker's treating physician, which may serve to obviate the need for an IME in many circumstances. The record does not explain the reason for the lengthy delay, but on March 26, 1999, the Division sent Serda to Rehabilitation Associates of Colorado for a second impairment rating. That report is somewhat more detailed than the first and set Serda's impairment rating as follows: "In my experience, a 5% extremity impairment would be appropriate. If desired, utilizing table 30, this can be converted to a 3% whole person impairment." The report was addressed to the Division and Concentra Managed Care. Thus, contrary to the governing statutes and pertinent rules of the Division, both impairment ratings were obtained by physicians engaged by the Division for purposes of defense against the claim, which it initiated for Serda. On July 22, 1999, the Division sent Serda a document captioned: "FINAL DETERMINATION OF PERMANENT PARTIAL IMPAIRMENT BENEFITS." That document informed Serda that, "The Division has reviewed this rating along with the original rating of 0% and has determined that you are entitled to a 3% percent [sic] impairment." Serda sent a letter to the Division, under the date of July 27, 1999, which we quote in pertinent part:

I object to the Final Determination of Permanent Partial Impairment Benefits of 3% because I do not think it reflects my complete impairment. I request the opportunity to seek legal advice at no personal expense and to present my objections before the Medical Commission, with a date for hearing to be as soon as possible, considering of course all interested parties' schedules.

The record then demonstrates that: Serda's request was referred to the Medical Commission by the Case Analyst on September 28, 1999; was further referred to the Medical Commission by the Case Analyst acting as the District Manager on December 27, 1999; was further referred by the Program Manager on December 27, 1999; and was actually referred to the Administrator of the Medical Commission on December 27, 1999. On December 28, 1999, the Commission then received the above-described documentation. Both the Division and the Commission are located in Cheyenne. By order dated December 29, 1999, a pre-hearing conference was set by the Commission for January 26, 2000. By order dated January 26, 2000, the Commission appointed an attorney to represent Serda and rescheduled the pre-hearing conference for February 8, 2000. In a document dated February 8, 2000, and entitled, "Order Setting Review Conference," the Commission reported the following:

THIS MATTER having come before the Office of the Medical Commission, (hereinafter referred to as "the Commission"), pursuant to the request for an IME [independent medical examination] and said request having been made by counsel for the Employee/Claimant [Serda], George Santini, and George having further request [sic] that we would like to have J.C. DeMers stipulate to an IME and said request having been made during the 2nd Pre Hearing Conference, and counsel for the Objector /Defendant [Division] having not been available for said conference, and the Medical Commission [sic] having fully reviewed the case file;

IT IS HEREBY ORDERED that this matter shall be set for a review conference on the 28th day of February at 10:00 a.m. At said review conference the parties will advise the Hearing Examiner of the status of the above matter;

IT IS FURTHER ORDERED that the parties may engage in further discovery herein until fifteen (15) days prior to the hearing date, yet to be set.

(Emphasis added.)

[¶ 7] By order dated March 21, 2000, which purports to be a report of the proceedings at the February 28, 2000 review conference, the hearing was set for June 29, 2000. No mention is made of Serda's request for an IME, though it seems unmistakably clear that such a request was made.¹

[¶ 8] With respect to an IME, the governing statute, Wyo. Stat. Ann. § 27-14-604 (LexisNexis 2001), provides:

(a) In any contested proceeding, the hearing examiner may appoint a duly qualified impartial health care provider to examine the employee and give testimony. The fee for the service shall be as ordered by the

...