State v. Singer

• Decision Date: 30 March 2011
• Docket Number: No. S–10–0064.,S–10–0064.
• Parties: STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellant (Petitioner),v.Leonard A. SINGER, Appellee (Respondent).
• Court: Wyoming Supreme Court

248 P.3d 1155

2011 WY 57

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

v.Leonard A. SINGER, Appellee (Respondent).

No. S–10–0064.

Supreme Court of Wyoming.

March 30, 2011.

Representing Appellant: Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Douglas M. Lesley, Special Assistant Attorney General.Representing Appellee: Mark L. Carman, Carman Law Office, PC, Billings, Montana.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.BURKE, Justice.

[¶ 1] Appellant, Wyoming Workers' Safety and Compensation Division, challenges an order from the Office of Administrative Hearings granting permanent total disability benefits to Leonard Singer. The Division contends the award should have been reduced by the amount of the award Mr. Singer previously received for his permanent partial impairment. The Division challenged the hearing examiner's ruling in district court and the appeal was certified to this Court. We reverse.

ISSUE

[¶ 2] The Division presents the following issue:

Did the hearing examiner, as a matter of fact and law, misinterpret and misapply Wyo. Stat. Ann. §§ 27–14–405 and 27–14–406 in concluding the legislature did not intend for previous physical impairment awards to be deducted from permanent total disability awards granted pursuant to the Wyoming Worker's Compensation Act?

FACTS

[¶ 3] This case involves the relationships among permanent partial impairment, permanent partial disability, and permanent total disability awards. Mr. Singer experienced a work-related injury in 2002 and received workers' compensation benefits related to the injury. In 2003, it was determined that Mr. Singer had a 30 percent whole body permanent partial impairment due to his injury and he accepted a permanent partial impairment award of $22,118.45 from the Division. In 2004, he received a permanent partial disability award of $49,009.94 as a result of the same injury. In 2009, the Division determined that Mr. Singer was entitled to a permanent total disability award of $202,000.80 due to the progression of his injury.

[¶ 4] The Division reduced Mr. Singer's permanent total disability award by $49,009.94 for the previous permanent partial disability award and by $22,118.45 for the previous permanent partial impairment award. The award was also discounted due to Mr. Singer's election to receive the award in lump-sum. The resulting amount of $115,159.18 was paid to Mr. Singer. Mr. Singer agreed that his previous permanent partial disability award should be deducted, but objected to the deduction of his previous permanent partial impairment award. The matter was referred to the Office of Administrative Hearings for a contested case hearing. The hearing examiner concluded that the Division had incorrectly reduced Mr. Singer's permanent total disability award by the amount paid to Mr. Singer for his previous permanent partial impairment award. The Division petitioned for review by the district court. The district court certified the matter to this Court pursuant to W.R.A.P. 12.09(b), and we accepted the case for review.

STANDARD OF REVIEW

[¶ 5] The facts in this case are not in dispute. We are presented solely with a question of statutory interpretation. When the issue is one of interpretation and application of law, we give no deference to an agency's decision:

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.

Ball v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2010 WY 128, ¶ 18, 239 P.3d 621, 627 (Wyo.2010) (quoting State ex rel. Wyo. Workers' Safety & Comp. Div. v. Faulkner, 2007 WY 31, ¶ 10, 152 P.3d 394, 396 (Wyo.2007)). In other words, we review de novo an agency's conclusions of law. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 26, 188 P.3d 554, 561–62 (Wyo.2008).

DISCUSSION

[¶ 6] The statute at the heart of this dispute is Wyo. Stat. Ann. § 27–14–406, which states:

§ 27–14–406. Permanent total disability; benefits.

(a) Subject to W.S. 27–14–602, upon certification by a physician licensed to practice surgery or medicine that an injury results in permanent total disability as defined under W.S. 27–14–102(a)(xvi), an injured employee shall receive for eighty (80) months a monthly payment as provided by W.S. 27–14–403(c) less any previous awards under W.S. 27–14–405 which were involved in the determination of permanent total disability, and dependent children shall receive an award as provided by W.S. 27–14–403(b). The monthly payment amount computed under W.S. 27–14–403(c) and any amount awarded under W.S. 27–14–408 shall constitute the exclusive benefit for both the physical impairment and the economic loss resulting from an injury,

including loss of earnings, extra expenses associated with the injury and vocational rehabilitation. An employee shall not receive benefits under this section if receiving benefits under W.S. 27–14–404 or 27–14–405.

(LexisNexis 2009) (emphasis added). It is undisputed that Mr. Singer's previous impairment award was made “under Wyo. Stat. Ann. § 27–14–405.” The hearing examiner concluded, however, that the permanent partial impairment award should not have been deducted from the permanent total disability award because it was not an award that was “involved in the determination of permanent total disability.” The Division disagrees with that interpretation.

[¶ 7] In resolving this issue we are guided by well-established rules of statutory interpretation.

First, we determine if the statute is ambiguous or unambiguous. A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. Unless another meaning is clearly intended, words and phrases shall be taken in their ordinary and usual sense. Conversely, a statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations.

Sinclair Oil v. Wyoming Dep't of Revenue, 2010 WY 122, ¶ 7, 238 P.3d 568, 570–71 (Wyo.2010) (quoting BP America Production Co. v. Dep't of Revenue, 2006 WY 27, ¶ 20, 130 P.3d 438, 464 (Wyo.2006)). When a statute is ambiguous, “the court will resort to general principles of statutory construction in an attempt to ascertain legislative intent.” Deloges v. State ex rel. Wyo. Workers' Compensation Division, 750 P.2d 1329, 1331 (Wyo.1988).

[¶ 8] Wyo. Stat. Ann. § 27–14–406 mandates deduction of “any previous awards under W.S. 27–14–405 which were involved in the determination of permanent total disability.” Wyo. Stat. Ann. § 27–14–405 provides for both impairment and disability awards:

§ 27–14–405. Permanent partial disability; benefits; schedule; permanent disfigurement; disputed ratings.

...

(f) An injured employee suffering an ascertainable loss may apply for a permanent partial impairment award as provided in this section.

(g) 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 award shall be paid as provided by W.S. 27–14–403 for the number of months determined by multiplying the percentage of impairment by sixty (60) months.

(h) An injured employee awarded permanent partial impairment benefits may apply for a permanent disability award subject to the following terms and conditions:

(i) The injured employee is because of the injury, unable to return to employment at a wage that is at least ninety-five percent (95%) of the monthly gross earnings the employee was earning at the time of injury;

(ii) An application for permanent partial disability is filed not before three (3) months after the date of ascertainable loss or three (3) months before the last scheduled impairment payment, whichever occurs later, but in no event later than one (1) year following the later date; and

(iii) The employee has actively sought suitable work, considering the employee's health, education, training and experience.

Wyo. Stat. Ann. § 27–14–405(f)–(h) (LexisNexis 2009).¹

[¶ 9] A permanent partial impairment award is a prerequisite to a permanent partial disability award. Wyo. Stat. Ann. § 27–14–405(h). Because of this requirement, the Division asserts that Mr. Singer's prior impairment award was necessarily “involved in the determination of permanent total disability.” It is difficult to disagree with that conclusion. The word “involved” is defined as “[c]onnected by participation or association.” American Heritage College Dictionary 730 (4th ed. 2004). Clearly, Mr. Singer's prior impairment award was “connected” to or “associated” with his disability award. It is tempting to end our analysis at this point. It would be possible to conclude that the statute is unambiguous and that deduction of any prior impairment award is mandated by the statute. Unfortunately, resolution of this issue is not so clear cut.

[¶ 10] The Division asserts that all prior impairment awards made under Wyo. Stat. Ann. § 27–14–405 must be deducted from any permanent total disability award. Mr. Singer counters that such an interpretation would render the phrase “which were involved in the determination of permanent total disability” superfluous. If all impairment and disability awards made under Wyo. Stat. Ann. § 27–14–405 must be deducted, according to Mr. Singer, there is no need for the language in dispute. The statute could have achieved the same result by removing the phrase “which were involved in the determination of permanent total disability.” The deduction language of the...