State ex rel. Wy. Workers' Safety & Comp. Div. v. Smith

• Decision Date: 06 March 2013
• Docket Number: No. S–12–0169.,S–12–0169.
• Citation: 296 P.3d 939
• Parties: STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellant (Petitioner), v. Timothy SMITH, Appellee (Respondent).
• Court: Wyoming Supreme Court

296 P.3d 939

STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellant (Petitioner),

v.Timothy SMITH, Appellee (Respondent).

No. S–12–0169.

Supreme Court of Wyoming.

March 6, 2013.

Representing Appellant: Gregory A. Phillips, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General; Amy M. Taheri, Special Assistant Attorney General.

Representing Appellee: Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming.

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

BURKE, Justice.

[¶ 1] Appellant, Wyoming Workers' Safety and Compensation Division, challenges an order from the Office of Administrative Hearings awarding additional temporary total disability (TTD) benefits to Appellee, Timothy Smith. The Division contends the award exceeded the maximum period for which an injured worker may receive temporary total disability benefits. We agree and reverse.

ISSUE

[¶ 2] The Division presents a single issue:

Smith sustained a compensable neck injury and, despite four separate surgeries to address it, never returned to work. The Division paid Smith Temporary Total Disability benefits for thirty-six months—the maximum period allowed by Wyo. Stat. Ann. § 27–14–404(a) and the Division's Rules. The OAH found that each of Smith's four separate surgeries was a second compensable injury, extending the amount of time the Division could pay TTD benefits. Do Wyo. Stat. Ann. § 27–14–404(a) and the Division's Rules limit TTD benefits to a cumulative maximum of thirty-six months for injuries resulting from any one incident or accident regardless of the second compensable injury rule?

Mr. Smith phrases the issue as follows:

Does a second compensable injury restart the limitation period for paying temporary total disability benefits under W.S. 27–14–404(a)?

FACTS

[¶ 3] The facts in this case are not in dispute. Mr. Smith originally injured his neck in 2001. He was diagnosed with a C5–6 disk herniation, underwent fusion surgery, and returned to work after a period of recovery.¹ Subsequently, in February, 2006, while working as a mechanic for Wyoming Machinery in Casper, Mr. Smith fell backwards and reinjured his neck. As a result of this incident, Mr. Smith's treating physician, Dr. Clayton Turner, completed a temporary total disability form certifying that Mr. Smith was temporarily disabled from returning to any gainful employment starting on March 30, 2006.

[¶ 4] Over the next four years, Mr. Smith underwent a series of surgeries on his cervical spine. In May, 2006, Dr. Turner performed an anterior cervical diskectomy and fusion at the C6–7 level and removed a plate from the C5–6 level that had been placed there during the 2001 fusion surgery. In February, 2007, a CT scan of Mr. Smith's neck revealed that the C6–7 fusion had not healed. Consequently, Dr. Turner performed a repeat anterior cervical fusion surgeryat the C6–7 level in May, 2007. That surgery also failed to achieve a solid fusion. As a result, Dr. Turner conducted a third surgery in February, 2008, in which he inserted a bone graft at the C6–7 level. Mr. Smith continued to experience neck pain after the third procedure, and Dr. Turner continued to certify that Mr. Smith was temporarily totally disabled. During the period from March, 2006 through March, 2009, Dr. Turner certified Mr. Smith's temporary total disability in twenty-five successive one- and two-month periods. Based on these certifications, the Division paid Mr. Smith TTD benefits continuously for thirty-six months.

[¶ 5] In the summer of 2009, Mr. Smith began experiencing left shoulder and arm pain in association with his neck pain. In December, he received a nerve root block at the C5 level that temporarily alleviated his shoulder and arm pain. Based on the results of the nerve block, Dr. Turner proposed surgery to alleviate the shoulder and upper arm pain. Dr. Turner performed an anterior diskectomy and fusion at the C4–5 level in February, 2010.

[¶ 6] Mr. Smith sought additional TTD benefits for the treatment period from March, 2009 to the February, 2010 surgery, and after the February, 2010 surgery. The Division issued a Final Determination denying payment of additional TTD benefits for this period, noting that Wyo. Stat. Ann. § 27–14–404(a) limits the amount of time for which TTD benefits may be received by an injured worker. The Division stated that “we do not approve the payment of temporary total disability benefits after March 30, 2009, as you have received thirty six (36) months of temporary total disability for your cervical spine work injury of February 28, 2006.” Mr. Smith objected to the Division's Final Determination, and the matter was referred to the Office of Administrative Hearings for a contested case hearing.

[¶ 7] Both parties filed motions for summary judgment. The OAH determined that Mr. Smith was entitled to additional TTD benefits and granted Mr. Smith's motion. It reasoned that Mr. Smith's shoulder and arm pain constituted a “second compensable injury,” and that a second compensable injury results in a new injury date which resets the period for which TTD benefits may be received under Wyo. Stat. Ann. § 27–14–404(a). In making this determination, the OAH stated:

It should be noted the second compensable injury rule was created by the court and is not found in the statutes. The statutes require a timely filing of a Report of Injury for any work injury, yet this provision has not been required in second compensable injury cases. It follows that other statutory requirements also do not apply in second compensable injury cases. This Office finds a second compensable injury is a new injury and an employee is entitled to TTD benefits for the second compensable injury. This Office also finds the limitation of TTD benefits in the statute and the rule applies to the original injury and an employee is entitled to additional TTD benefits in excess of 36 months if there is a new and subsequent injury.

[¶ 8] After receiving the OAH's order, the Division filed a petition for review in district court. That case was assigned as Civil Action No. 92410. The Division also issued a second Final Determination which concluded that Mr. Smith had no actual monthly earnings at the time of each of his successive surgeries. As a result, the Division set the rate of pay for Mr. Smith's temporary total disability benefit at zero. Mr. Smith objected to the Division's determination, and that matter was also referred to the OAH. The parties again filed cross motions for summary judgment, and the OAH granted summary judgment in favor of Mr. Smith. The Division filed a second petition for review in district court, and that case was assigned as Civil Action No. 93091. The district court subsequently consolidated the appeals on the Division's motion. The district court affirmed both of the OAH's orders granting summary judgment to Mr. Smith. The Division filed a timely appeal. On appeal, the Division challenges only the OAH's initial order finding Mr. Smith eligible for additional TTD benefits.

STANDARD OF REVIEW

[¶ 9] The issue presented in this case is one of statutory interpretation. Statutoryinterpretation raises questions of law, which we review de novo. Wyoming Dep't of Envtl. Quality v. Wyoming Outdoor Council, 2012 WY 135, ¶ 8, 286 P.3d 1045, 1048 (Wyo.2012).

The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are questions 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.

State ex rel. Wyo. Workers' Safety & Comp. Div. v. Singer, 2011 WY 57, ¶ 5, 248 P.3d 1155, 1157 (Wyo.2011) (quoting Ball v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2010 WY 128, ¶ 18, 239 P.3d 621, 627 (Wyo.2010)). We review the district court's decision as if it had come directly from the administrative agency. Anderson v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2010 WY 157, ¶ 7, 245 P.3d 263, 266 (Wyo.2010).

DISCUSSION

[¶ 10] The Wyoming Worker's Compensation Act provides for the award of TTD benefits to an injured worker. The purpose of a TTD award is “to provide income for an employee during the time of healing from his injury and until his condition has stabilized.” Phillips v. TIC–The Industrial Co. of Wyoming, Inc. (In re Phillips), 2005 WY 40, ¶ 27, 109 P.3d 520, 532 (Wyo.2005). A “temporary total disability” is defined under the Act as follows:

“Temporary total disability” means that period of time an employee is temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which he is reasonably suited by experience or training. The period of temporary total disability terminates at the time the employee completely recovers or qualifies for benefits under W.S. 27–14–405 [governing permanent partial disability] or 27–14–406 [governing permanent total disability].

Wyo. Stat. Ann. § 27–14–102(a)(xviii) (LexisNexis 2011).

[¶ 11] Wyo. Stat. Ann. § 27–14–404 establishes a limitation on the amount of time that an injured worker may receive TTD benefits. The statute provides, in relevant part, as follows:

§ 27–14–404. Temporary total disability; benefits; determination of eligibility; exceptions for volunteers or prisoners; 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...