Schossow v. State Ex Rel. Wyoming Workers' Safety & Compensation Division, 255 P.3d 941

Appellant Dawn Schossow injured her back lifting a patient, leading to subsequent fusion surgery in 2005.
Post-injury, she could not return to her pre-injury nursing role due to medical restrictions.
She began part-time/modified work and earned $21.00 per hour upon returning to work.
In 2007 she applied for Permanent Partial Disability (PPD); vocational evaluation suggested several 95%+ wage options.
Division denied PPD, finding no loss of earning capacity; an OAH hearing upheld the denial; district court and Wyoming Supreme Court reviewed.
Court affirmed, ruling the examiner properly used a wage reflecting earning capacity beyond immediate post-injury wages.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Interpretation of 27-14-405(h)(i) governing 95% wage threshold	Schossow argues use of 95% wage requires 95% of pre-injury wage at return	Wyoming contends true earning capacity, not initial wage, governs	Lawful interpretation; consider true earning capacity, not initial wage
Substantial evidence for loss of earning capacity	Evidence showed limited current earnings; burden unmet	Evidence shows capable of earning 95%+ of pre-injury wage	Substantial evidence supports denial of PPD

Savicki v. State ex rel. Wyo. Workers' Safety & Comp. Div., 92 P.3d 294 (Wy. 2004) (focus on true earning capacity, not initial post-injury wage)
Cochran v. State ex rel. Wyo. Workers' Safety & Comp. Div., 993 P.2d 320 (Wy. 1999) (post-injury wage may reflect earning capacity beyond initial wage)
Chavez v. Memorial Hospital of Sweetwater County, 138 P.3d 185 (Wy. 2006) (employee must actively seek suitable work; perception of disincentive condemned)
Bonsell v. State ex rel. Wyo. Workers' Safety & Comp. Div., 142 P.3d 686 (Wy. 2006) (factors to consider in loss of earning capacity; wage is material)
McCarty v. Bear Creek Uranium Co., 694 P.2d 93 (Wy. 1985) (recognizes multi-factor approach to earning capacity)