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Bailey v State of Wyoming ex rel. Wyoming Worker’s Safety and Compensation Division

Case No. S-10-0051 (WY S.Ct., Nov. 23, 2010)

Diane Bailey appeals from the district court’s order affirming the Office of Administrative Hearing’s (OAH) denial of her claim for temporary total disability (TTD) benefits. We conclude the OAH correctly determined that Ms. Bailey failed to file a proper health care provider certification when she applied for TTD benefits and, under the relevant statutes and agency rule, she is not entitled to benefits.

We affirm.

ISSUES

Ms. Bailey presents a single issue on appeal:
Did the Office of Administrative Hearings . . . act arbitrarily and capriciously, and contrary to law, in denying payment of temporary total disability benefits (“TTD”) to Appellant, Diane Bailey (“Bailey”), even though she was “temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which [s]he [was] reasonably suited by experience or training?” Wyo. Stat. §27-14-102(a)(xviii).
State of Wyoming ex rel., Wyoming Workers’ Safety and Compensation Division (Division) states two issues on appeal:
I. Is the hearing officer’s determination denying Appellant’s requested temporary total disability (“TTD”) benefits because Appellant failed to properly submit a completed TTD certification form, signed by her physician, arbitrary, capricious, or otherwise not in accordance with Wyoming law?

II. Does substantial evidence support the hearing officer’s determination that Appellant failed to follow the procedural requirements for filing a TTD claim and that, therefore, her request for TTD benefits should be denied?

FACTS

Ms. Bailey injured her right shoulder in November 2007, while working as a welder’s helper for Gregory & Cook Construction, Inc. She was examined by a physician’s assistant at Rawlins Urgent Care on December 18, 2007. The physician’s assistant restricted her from overhead work and lifting more than 5 pounds. After working for a few more days, she returned home to Michigan. Ms. Bailey was examined by family physician, Dr. D. Dotson, on December 26, 2007. Dr. Dotson filled out a “Return to Work/School Statement” which stated that Ms. Bailey was not to perform any work until she was seen by an orthopedic physician.

Ms. Bailey faxed a report of injury and eighteen page letter to the Division on January 2, 2008. She also asserted that she submitted an application for TTD benefits at the same time, although the application in the record was not stamped as “received” by the Division and the Division argued there was no evidence that it received the application. The application was filled out only by Ms. Bailey; her physician did not complete the “Health Care Provider’s Certification” part of the document or sign it.
 

 

Judge(s): Marilyn S. Kite
Jurisdiction: Wyoming Supreme Court
Related Categories: Employment
 
Supreme Court Judge(s)
James Burke
Michael Golden
William Hill
Marilyn Kite
Barton Voigt

 
Trial Court Judge(s)
Scott Skavdahl

 
Appellant Lawyer(s) Appellant Law Firm(s)
Stephenson Emery Williams Porter Day and Neville PC

 
Appellee Lawyer(s) Appellee Law Firm(s)
James Causey Office of the Wyoming Attorney General
John Renneisen Office of the Wyoming Attorney General
Bruce Salzburg Office of the Wyoming Attorney General

 

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Click the maroon box above for a formatted PDF of the decision.
i. is the hearing officer's determination denying division originally determined ms. bailey's injury was not compensable; 2) she diane bailey, 2010 wy 152 decision denying benefits because her application did not contain a proper requirement under w.s. 27-14-404 and 27- ("ttd") to appellant, diane bailey ("bailey"), even [23] the language of this section indicates a clear intent to abrogate the powder river basin resource council v. wyoming dep't of environmental 14-501(b) for ttd benefits. the health snyder v. state ex rel. wyoming workers' comp. div., 957 p.2d 289, 293 (wyo. compensation act is not remedial in any sense and is [s]tatutory interpretation begins with an inquiry into of workers' benefits legislation shall not apply in these employers who are subject to the worker's 120 p.3d 1031, 1048 (wyo. 2005). the relevant provisions of the division rule wyoming. claim for temporary total disability following the initial this court noted that 27-14-404(d) does not address the procedural not to be given a broad liberal construction in favor of [she was] reasonably suited by experience or training." instead, it ruled that the whelan determined that surgery was indicated. on february 28, 2008, dr. requirements for filing ttd claims. rules, regulations and fee schedules of the 14-404(d) shall result in denial of the claim. and, in any event, she was not entitled to benefits because her application did by the division for ttd certification and, consequently, did not meet the state of wyoming, ex rel., wyoming workers' safety and laws administered by it to provide a worker's benefit division's opportunity to effectively monitor and alcorn: [7] ms. bailey had surgery on april 23, 2008, and subsequently began temporarily totally disabled under wyoming law. moreover, ms. bailey does not claim is approved, the division shall determine the osenbaugh v. state ex rel. wyoming workers' safety & comp. div., 10 p.3d with w.s. 27-14-403 through 27-14-406 and 27-14- are not silent regarding the procedural requirements dr. dotson filled out a "return to work/school statement" which stated that ms. dotson's return to work/school statement. dr. dotson's form was dated before kite, c.j., and golden, hill, voigt, and burke, jj. temporary total disability or continued temporary total disability." subsection (e) temporary total disability as defined under w.s. 27- attending health care provider." given that ms. bailey did not fulfill the statutory injury was compensable and paid her medical claims. the division did not, those circumstances, benefits "shall not be paid." section 27-14-404(d). issues [31] affirmed. . . . . safety & comp. div., 2002 wy 84, 27, 47 p.3d 613, 621 (wyo. 2002) that in focus on that analysis. we start by recognizing that the claimant has the burden division to make a determination as to whether the claimant is eligible for volume. whether the employee's injury resulted in an ascertainable loss, as that term is coverage." the reference to deciding benefit claims cases "on their merits" was same strategies in interpreting agency rules and regulations. see powder river, than one reasonable interpretation exists, we resort to v. wyoming state bd. of equalization, 856 p.2d 440, stated earlier, her health care provider did not properly certify that she was certification by the treating health care provider that the worker is temporarily and gainful employment for which the worker is a claim is filed without the signature of the claimant and certification by the administrative hearing's (oah) denial of her claim for temporary total disability which must be met by a claimant for an initial award initial claim for ttd benefits and the statutes and rules provide that, under application for benefits. the oah held a contested case hearing on november for benefits to the division, on a form provided by the 1998); higgins v. state ex rel. wyoming workers' comp. div., 739 p.2d 129, 133 employers and health care personnel or through review of written reports." must be reached without the assistance of any presumption in favor of of proving the essential elements of her claim by a preponderance of the care provider shall examine the injured because the claimant appears to meet the definition of ttd. proper form for ttd benefits and 27-14-404(k) by failing to advise her that she not contain a health care provider's certification. ms. bailey filed a petition for this certification fulfills the diane bailey v. state of wyoming, ex rel< wyoming imposed; the dates of the health care provider's last examination of the employee was temporarily totally disabled under wyoming law or set forth the reasons for in unambiguous terms, however, "we are bound to the application did not include a proper certification from her health care provider. from performing employment at any gainful employment or occupation for which the health care provider is required to supply a significant amount of information, gerdes. mr. alcorn's claim for retroactive ttd employer, employee and the claimant. the second matter was correct and dispositive. v. wyoming game and fish com'n, 845 p.2d 1040, division shall determine if the injured employee or his ttd benefits. benefits is a claim for initial ttd benefits. it is not a properly submit a completed ttd certification file a written report with the division. . . . the report shall specify reasons for the legislature intended that procedural deficiencies be overlooked simply (lexisnexis 2009), i.e., whether she was "temporarily and totally incapacitated necessitating application of the following standard of review: impairment rating. the health care provider is required to sign and date the form including: the health care provider's name, address, phone number and federal provisions of the wyoming workers' compensation any determination under this subsection to the requesting continuing benefits. here, we are concerned with an initial claim for state of wyoming ex rel., wyoming workers' safety and compensation division form, signed by her physician, arbitrary, state: offer her alternative work. complete with questions about her personal information, injury and work status certification shall specify the reasons for the total and disabled workers at a reasonable cost to the and the employee's next appointment; whether surgery is indicated and the appealed, claiming that ms. gerdes was not entitled to benefits because she did administrative agency are affirmed only if they are in or deny the claim in accordance with this act. if a employee and file this written report the wyoming worker's compensation division that the requirements for filing an application of ttd benefits. her failure to file a benefits (lost wages). compensable and within the jurisdiction of this act, the deputy attorney general; james michael causey, senior assistant stat. 27-14-102(a)(xviii). (i) when submitted. a claim for ttd must be statement: number of anticipated follow up visits; who the provider referred the employee to; benefits are distinguishable from those presented in division. not file claim certifications while her contested case was pending. id. at 1173. bruce a. salzburg, wyoming attorney general; john w. renneisen, temporary total disability in accordance with w.s. 27- accord with the law. we do not afford any deference [29] although ms. bailey committed a different procedural error than mr. reasonably suited by experience or training?" wyo. administrative agency rules. common law rule that workers' compensation laws were interpreted in favor of id., 13, 126 p.3d at 927-28. objects to a division determination that an injury is compensable and the [19] ms. bailey claims that, despite the fact the division's form was not settlement of . . . claims filed under this act through interviews with employees, dependents are eligible for benefits and shall approve legislature that benefit claims cases be decided on construction to workers' compensation statutes, and our statutory interpretations finally, wyo. stat. ann. 27-14-601(e) (lexisnexis 2009) directs the division to from performing employment at any gainful amount of the award for compensation in accordance [20] dr. dotson's return to work/school document was not the form provided footnotes private disability insurance, which stated that ms. bailey still could not work. [26] ms. bailey also claims that state ex rel. wyoming workers' safety & disabled (that is, incapacitated from performing any totally disabled. the division rule mandates that the application for benefits be she filed an incorrect form or did not fill it out correctly. it simply requires the based on my examinations, conduct and provider [to] examine the employee before certification and . . . without charge 1044 (wyo.1993)). when the legislature has spoken [1] diane bailey appeals from the district court's order affirming the office of october term, a.d. 2010 or death resulting from injury is determined december 26, 2007, and indicated that ms. bailey's work status was "no work." ms. bailey acknowledged that she had received a handbook from the division after she filed her the district court determined that the record did not contain sufficient evidence to standard of review receive a temporary total disability award for the of ttd benefits. the unambiguous language of the benefits at the same time, although the application in the record was not stamped hernandez v. laramie county school dist. no. 1, 8 p.3d 318, 323 (wyo. 2000); construction" based on the supposed "remedial" basis completed by her physician, the legal requirements were satisfied by a 27-14-101(b), the legislature "specifically renounced any rule affording liberal conclusion bailey met the definition of ttd under wyo. stat. ann. 27-14-102(a)(xviii) [24] ms. bailey also claims that the division cannot insist on strict compliance [14] the hearing examiner articulated two independent grounds for denying this statutory provision does not require the division to inform the claimant that must be filed with the division. w.s. 27-14-501([e]). 6, 226 p.3d at 813. as a result of the injury the employee is subject to [6] ms. bailey saw rhonda whelan, d.o. on january 24, 2008. dr. whelan ms. bailey ttd benefits: 1) there was no evidence that she submitted her any party. [18] ms. bailey filled out the employee's section of her application for ttd 14-102(a)(xviii), the injured employee is entitled to information about ttd benefits. ms. bailey agreed that the handbook included various forms and 27-14-404(d) and 501(b). moreover, dr. dotson's form did not provide as "received" by the division and the division argued there was no evidence that we distinguished gerdes when we affirmed the denial of ttd benefits to mr. the hearing examiner that she was not entitled to ttd benefits. see generally, benefits and, under the relevant statutes and agency rule, she is not entitled to or regulatory requirements for health care provider certification, we agree with correctly denied her claim for ttd benefits. patient within the last sixty (60) days and decided: 11/23/2010 disabled . . . ." that provision does not apply in this case because: 1) the discussion though she was "temporarily and totally incapacitated force and effect of law. diamond b services, inc. v. rohde, 2005 wy 130, 60, delivery of indemnity and medical benefits to injured months. on september 9, 2008, dr. whelan filled out a form for ms. bailey's case, ms. gerdes received ttd benefits until her doctor indicated that she had wyoming workers' safety & comp. div., 2009 wy 115, 7, 216 p.3d 494, 496 ttd claim and that, therefore, her request for misinterpreting the legislature's intent in adopting 27-14-101(b): provider that the worker is temporarily and totally wyoming law? with the wyoming workers' safety and [8] the division initially denied coverage, but later agreed that ms. bailey's with the procedural requirements of the wyoming workers' compensation act undermines an employer's right to offer light duty return to work/school document did not include a certification that ms. bailey contrary to ms. bailey's assertion, there is nothing in the section indicating that date is 4-23-08." employee can return to modified duty work and, if so, what restrictions would be division on january 2, 2008. the district court, nevertheless, upheld the oah based on a mutual renunciation of common law rights wyoming workers' safety and compensation division, ch. 5, 4 (august 14, benefit being requested. in gerdes, the employee had already filed her initial employer was not provided the opportunity to determine whether it could capricious, or otherwise not in accordance with citing pittman v. state ex rel. wyoming workers' comp. div., 917 p.2d 614, 617 statements of the employee, i hereby compensation] act must submit a written application (ttd) benefits. we conclude the oah correctly determined that ms. bailey failed of 27-14-501 states: "by rule and regulation establish necessary procedures for the review and certification was not completed or signed by her doctor, although ms. bailey filled 557 (wyo. 1994). the claimant "also must establish [her] compliance with the v. related; the date the employee will be able to return to full duty work; whether the [2] we affirm. determined that she had not reached maximum medical improvement and stephenson d. emery of williams, porter, day & neville, p.c., casper, notice: this opinion is subject to formal revision before publication in pacific employment except as set forth above. section reveals that ms. bailey is taking that phrase out of context and determined her injury was compensable, the employer objected; and 3) as we combination of the employee part of her application for ttd benefits and dr. [9] this case requires interpretation of worker's compensation law, whelan's office completed a "disability certificate," indicating that ms. bailey "is physician's assistant restricted her from overhead work and lifting more than 5 an award of benefits under the [wyoming workers' compensation division. temporary total disability. [17] the division's ttd form contains two parts, one for the employee to because the health care provider did not fill out the division's form, the ordered a right shoulder arthrogram, which was completed on february 21, defined in wyoming law; and whether the provider can provide a permanent claim for ttd benefits by the statutory deadline. alcorn, 10, 126 p.3d at 926. period of certification shall be filed with the division to be off work as of today (2-28-08) through 3 months after surgery. pt's surgery [28] in that regard, alcorn is more applicable. mr. alcorn did not file his initial disability and the expected period of disability. appellee (respondent). . . . . cite as: 2010 wy 152, __ p.3d __ evaluate a claimant's entitlement to ttd benefits. the the facts regarding mr. alcorn's claim for ttd osenbaugh, 10 p.3d at 548, quoting platte development co. v. state employed by the legislature according to the manner [12] wyo. stat. ann. 27-14-501(b) (lexisnexis 2009) requires a "health care benefits. injured employees. we explained in appleby v. state ex rel. wyoming workers' reached maximum medical improvement, at which point the division terminated the same policies for denying benefits expressed in alcorn apply here. (wyo. 1987). [11] in addition to the definition of ttd quoted above, several other statutes a welder's helper for gregory & cook construction, inc. she was examined by a appeal from the district court of natrona county requirements for filing a ttd claim and states in relevant part: "benefits under general principles of statutory construction. moncrief states in pertinent part: that the above patient is temporarily cases. the worker's benefit system in wyoming is comp. div. v. gerdes, 951 p.2d 1170 (wyo. 1997) supports allowing her ttd benefits and signed and dated it january 2, 2008. the health care provider's act is a question of law over which our review period of temporary total disability as provided by 2008. the test indicated that ms. bailey had a partial rotator cuff tear, labral tear, division and employer did not have information necessary to effectively ch. 5, 4. report of injury. she testified she read the handbook, but did not remember that it included requirements for requesting continuing benefits after benefits have been rules and procedures set forth in the wyoming worker's compensation act." a claimant's failure to file a timely claim limits the [25] section 27-14-404(k) provides for interim ttd benefits "[i]f the employer quality, 2010 wy 25, 6, 226 p.3d 809, 813 (wyo. 2010). bailey was examined by family physician, dr. d. dotson, on december 26, 2007. total disability." the health care provider's section starts with the following claim. resolution of this issue requires us to interpret the relevant statutes and reasonably suited by experience or training). the claim to the employer. failure to file a claim for filed within 60 days after the first day of certified benefits and provide notice of that determination to the interested parties. [10] the oah's decision denying ttd benefits did not focus on whether ms. ("ttd") benefits because appellant failed to all potential benefits.1 and was signed by someone in dr. dotson's office. made without certification from a treating health care inc. v. briggs, 848 p.2d 811, 815 (wyo.1993). if more the honorable scott w. skavdahl, judge evaluate and monitor ms. bailey's qualification for benefits and the physician. it included the comment: "patient unable to work until seen by orthopedic dr." employment or occupation for which [s]he [was] evidence. sims v. state ex rel. wyoming workers' comp. div., 872 p.2d 555, application for ttd benefits with the division on january 2, 2008, as she claimed and a separate section titled "health care provider's certification of temporary support the hearing examiner's ruling on the first basis, but the oah decision on reporter third. readers are requested to notify the clerk of the supreme court, [5] ms. bailey faxed a report of injury and eighteen page letter to the division (b) it is the intent of the legislature in creating [22] ms. bailey claims that we should overlook the procedural deficiencies and in the context of nullifying the historical liberal construction in favor of coverage. applying the law. compensation division, workers' compensation div. v. bergeron, 948 p.2d claims cases [should] be decided on their merits." a review of the entire statutory present in gerdes. the applicable statutes and rules ttd claim and certification by a healthcare provider. the reasons for the disability and the expected period of disability. division rule, that there was no evidence ms. bailey filed her application was not supported by facts provider[.]" [3] ms. bailey presents a single issue on appeal: 1367, 1369 (wyo.1997). environmental quality council, 966 p.2d 972, 974 (wyo. 1998). we apply the [27] the critical distinction between gerdes and the present case is the type of detailed information about the health care provider or ms. bailey's diagnosis, submitted on a form provided by the division and the health care provider specify document or sign it. act arbitrarily and capriciously, and contrary to law, in 408, if applicable. the division shall provide notice of if after a compensable injury is sustained and temporary total disability. w.s. 27-14-404(d). therefore, that the certification requirements set forth in the statute did not apply supreme court building, cheyenne, wyoming 82002, of any typographical or other judicial review with the district court, and that court determined the oah finding because it did not fulfill its procedural responsibilities. in particular, she claims alcorn v. sauer drilling co., 2006 wy 15, 7, 126 p.3d 924, 926 (wyo. 2006), appellant (petitioner), physician's assistant at rawlins urgent care on december 18, 2007. the [15] we agree that resolution of the certification issue is dispositive and will alcorn, the legal principle is the same. ms. bailey failed to file a proper 2006) (division rule). like all administrative rules, the division rule has the direct us to any legal authority stating that the division is obligated to notify her of [13] to that end, the division adopted and filed rules setting out the procedural 4, 2008, indicating that ms. bailey would continue to be off work for another two physician did not complete the "health care provider's certification" part of the [4] ms. bailey injured her right shoulder in november 2007, while working as failure to properly file an initial ttd claim also it received the application. the application was filled out only by ms. bailey; her under such circumstances. id. at 1174-75. tax identification number; the employee's diagnosis; whether the injury was work representing appellant: substantial evidence because she testified repeatedly that she faxed it to the (b) claim for temporary total disability (ttd) under the following certification: (ii) certification. an award of ttd cannot be in some of that section herself. and defenses by employers and employees alike. stated that the ttd application she filed was from the handbook. and the division shall transmit a copy of the initial work to the employee in lieu of ttd benefits. wyo. stat. ann. 27-14-404(d) (lexisnexis 2009) sets out procedural to the agency's determination, and we will correct any requirement to use the division's form set out in division rule, ch. 5, 4. the (wyo. 2009). similarly, interpretation of the agency rules and regulations however, award her ttd benefits, asserting that she had not filed a proper the ordinary and obvious meaning of the words formal errors so correction may be made before final publication in the permanent denying payment of temporary total disability benefits (wyo. 1996). 4, 2008. the oah ruled there was no evidence that ms. bailey filed her 1294, 1295 (wyo.1997)]; sheridan commercial park, claim even though she failed to file an appropriate application for benefits. in that pounds. after working for a few more days, she returned home to michigan. ms. in which those words are arranged. [parodi v. physical therapy. dr. whelan completed another disability certificate on august workers' safety and compensation division does not identify any evidence in the record indicating that, once the division proper health care provider's certification was fatal to her claim. the oah ttd benefits should be denied? (d) upon receipt of a claim for impairment, pertinent statutes and rules requires timely filing of the 544, 547-48 (wyo. 2000) (citations omitted). see also, boe v. state ex rel. the health care provider must also provide the dates of the expected duration of of wyo. stat. ann 27-14-101(b) (lexisnexis 2009), which provides that "benefit accordingly, the legislature declares that the worker's their merits and that the common law rule of "liberal certification from her health care provider. ms. bailey appealed to this court. subsection (a) of this section shall not be paid if . . . (ii) a claim is filed without the error made by the agency in either interpreting or claim for a continuation of ttd benefits as was certify that i have examined the above (division) states two issues on appeal: representing appellee: w.s. 27-14-403(c). implementing statutory directives is a question of law, reviewed de novo. see officer's determination that appellant failed to [21] section 27-14-404(d) mandates that ttd benefits "shall not be paid if . . . decide the case on its merits. in support of her assertion, she directs us to part [30] ms. bailey did not comply with the statutory and regulatory procedural deficiencies in her application for benefits warranted denial of her to file a proper health care provider certification when she applied for ttd case number: no. s-10-0051 attorney general. bailey was not to perform any work until she was seen by an orthopedic are relevant to our inquiry. wyo. stat. ann. 27-14-404(a) (lexisnexis 2009) her continuing benefits. id. at 1172. she objected and, after a hearing, the oah the division violated 27-14-601(d) by not telling her that she had not filed the kite, chief justice. follow the procedural requirements for filing a 403(g) or 27-14-501(e) and (f) and if the initial injury impingement syndrome and adhesion capsulitis in her right shoulder, and dr. results so expressed." state ex rel. wyoming section 4. claims for benefits. a person seeking employee's health care provider has certified the employee as temporarily totally (iv) where submitted. a claim for ttd benefits signature of the claimant and certification by the attending health care application for ttd benefits to the division on january 2, 2008; and 2) her did the office of administrative hearings . . . compensation act. it is the specific intent of the on january 2, 2008. she also asserted that she submitted an application for ttd appellant's requested temporary total disability the interpretation and correct application of the terminated and the claimant is awaiting a contested case hearing. we ruled, the disability or expected period of disability as required by the division rule and [16] sections 27-14-404(d) and 501(b) and (e) and the division rule require benefits under w.s. 27-14-404 and any subsequent an initial claim for temporary total disability treatment plan, or prognosis. system be interpreted to assure the quick and efficient authority is plenary. conclusions of law made by an application and had been receiving ttd benefits for some time. she was simply disabled from returning to any gainful ii. does substantial evidence support the hearing 444 (wyo.1993) (quoting parker land and cattle co. wyoming department of transportation, 947 p.2d disability or death benefits filed under w.s. 27-14- 1 awarded her ttd benefits for the period prior to the hearing. the division was entitled to receive interim ttd benefits. section 27-14-601(d) states:


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