In Re Hernandez
Representing Appellee Laramie County School District Number One: Mark R. Stewart, Cheyenne, WY.
Representing Appellee Workers’ Safety and Compensation Division: Gay Woodhouse, Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Bernard P. Haggerty, Senior Assistant Attorney General.
Before LEHMAN, C.J., and THOMAS, MACY**, GOLDEN, and HILL, JJ.
LEHMAN, Chief Justice.
Josephine B. Hernandez (Hernandez) applied for temporary total disability benefits for the time she claims to have been totally disabled following TMJ surgery that was performed subsequent to her acceptance of an award of permanent partial impairment benefits for the same condition. After denial of the temporary total disability benefits by the Workers’ Safety and Compensation Division, Hernandez objected, and the matter was referred to the Medical Commission for a contested case hearing. The Medical Commission allowed the expenses associated with the TMJ surgery, but ruled Hernandez was not entitled to temporary total disability benefits. Because we conclude the Medical Commission incorrectly determined the Worker‘s Compensation Act required Hernandez to prove an increase in permanent incapacity to establish entitlement to temporary total disability benefits, we will reverse
ISSUES
This Statement of the Issues is found in the Brief of the Appellant, Hernandez:
1. Did the Medical Commission err in denying Hernandez‘s claims for temporary total disability following surgery in June of 1997?
This Statement of the Issues is found in the Brief of Appellee, Laramie County School District Number One:
A. Is the Employee entitled to additional temporary total disability benefits under
W.S. Section 27-14-404(b) for a period of temporary disability following her TMJ surgery in June 1997?B. Is the Employee entitled to additional temporary total disability benefits under
W.S. Section 27-14-605(a) for a period of temporary disability following her TMJ surgery in June 1997?
This Statement of the Issues is found in the Brief of Appellee, the Wyoming Workers’ Safety and Compensation Division:
The Employee underwent surgery one year after receiving a permanent impairment award. The Medical Commission denied temporary total disability benefits because she had not returned to work before surgery.
A. Was the denial of temporary total disability benefits in accordance with law?
The Medical Commission denied the Employee‘s application to modify benefits because she failed to prove either an increase in incapacity or a mistake.
B. Was the denial of the application to modify benefits in accordance with law?
FACTS
On February 28, 1995, Hernandez was injured while employed as a bus aide for Laramie County School District No. 1. She submitted a claim for temporary total disability with the Workers’ Safety and Compensation Division (Division) on March 20, 1995, complaining of neck, right shoulder, and low back pain. She was ultimately diagnosed with a temporal mandibular joint injury (TMJ). In April of 1996, her physician assigned her a 10% whole person impairment rating and concluded she had attained maximum medical improvement. The Division agreed and, on April 16, 1996, awarded her a 10% permanent partial impairment award resulting from the TMJ injury, effectively terminating her temporary total disability benefits pursuant to
Hernandez continued to experience problems with her TMJ and, on June 4, 1997, underwent surgery for bilateral degenerative TMJ disease. On July 18, 1997, she applied for temporary total disability benefits for June 3, 1997, through July 30, 1997. The Division responded by requesting additional information to determine her eligibility for temporary total disability benefits under
Along with Hernandez‘s claim for temporary total disability benefits, the Medical Commission also heard two other Hernandez claims, a claim for benefits for the cost of the TMJ surgery and a claim for mental injuries. In its order, the Medical Commission recognized that Hernandez‘s TMJ syndrome was work related, making the cost of surgery and treatment compensable, but denied her total temporary benefits for June 3, 1997, to July
STANDARD OF REVIEW
Although the Medical Commission allowed her costs for the TMJ surgery and treatment, Hernandez claims that she is also entitled to temporary total disability (TTD) benefits for the two months following her TMJ surgery. These issues raise questions of fact review as well as statutory interpretation.
In performing our review of a decision that a claimant has failed to meet her burden of proof, we apply the following principles:
A claimant for worker‘s compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. Martinez v. State ex rel. Wyoming Workers’ Compensation Div., 917 P.2d 619, 621 (Wyo.1996). When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the “[a]rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law” language of
Wyo. Stat. § 16-3-114(c)(ii) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant ... has the burden of proving arbitrary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 432, 439 (Wyo.1974); Marathon Oil Co. v. Welch, 379 P.2d 832, 836 (Wyo.1963); Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of witnesses. Utech, 895 P.2d at 451, and cases there cited. The deference normally accorded to the findings of fact by a trial court is extended to the administrative agency, and the agency‘s decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 873, 875 (Wyo.1994).
Pederson v. State ex rel. Workers’ Compensation Div., 939 P.2d 740, 742 (Wyo.1997); In re Nissen, 983 P.2d 722, 724 (Wyo.1999); Carrillo v. State ex rel. Workers’ Safety and Compensation Div., 987 P.2d 690, 693 (Wyo. 1999).
When interpreting statutes,
We read the text of the statute and pay attention to its internal structure and the functional relation between the parts and the whole. We make the determination as to meaning, that is, whether the statute‘s meaning is subject to varying interpretations. If we determine that the meaning is not subject to varying interpretations, that may end the exercise, although we may resort to extrinsic aids of interpretation, such as legislative history if available and rules of construction, to confirm the determination. On the other hand, if we determine that the meaning is subject to varying interpretations, we must resort to available extrinsic aids. If an ambiguous statute has been construed by an agency charged with administering it, we will accord deference to, but are not bound by, that construction. After all, the final construction of an ambiguous statute is a question for the court.
Parker Land and Cattle Co. v. Game & Fish Comm‘n, 845 P.2d 1040, 1045 (Wyo.1993).
DISCUSSION
Analysis of Hernandez‘s claim begins with a review of the temporary total disability (TTD) statute,
(b) Any employee awarded benefits under
W.S. 27-14-405 or27-14-406 is not eligible for benefits under subsection (a) of this section unless the employee has returned to gainful employment and following employment, undergoes additional surgery not reasonably contemplated before the award for permanent impairment or disability and then only for a reasonableperiod of recuperation, confinement for medical care during the actual period of confinement or unless application is made and an award is granted under W.S. 27-14-605 .
Here, because Hernandez previously accepted a 10% permanent partial impairment award for her TMJ problems pursuant to
Pursuant to
We turn then to Hernandez’ argument that she is entitled to TTD benefits under the second alternative found in
If a determination is made in favor of or on behalf of an employee for any benefits under this act, an application may be made to the division by any party within four (4) years from the date of the last payment for additional benefits or for a modification of the amount of benefits on the ground of increase or decrease of incapacity due solely to the injury, or upon grounds of mistake or fraud.
Whether applying for additional benefits or a modification of the amount of benefits, the claimant is required to establish the grounds for such an application, i.e., an increase or decrease of incapacity due solely to the injury, or mistake, or fraud. Jackson v. J.W. Williams, Inc., 886 P.2d 601, 603 (Wyo.1994). Here there is no question of fraud.
We turn first to the question of whether Hernandez has established an increase in incapacity due solely to the injury. We have previously determined that “when an employee‘s condition changes from permanent partial disability to temporary total disability, his incapacity is increased.” Parnell v. State ex rel. Worker‘s Compensation Div., 735 P.2d 1367, 1368 (Wyo.1987) (emphasis in original). This is true regardless of whether the claimant‘s permanent partial disability has increased. Harris v. State ex rel. Workers’ Compensation Div., 736 P.2d 309, 310 (Wyo.1987). Although such an award may appear to permit a double recovery, we have made clear that a claimant may not be
totally disabled and partially disabled at the same time. Such a result would ignore the principle, implied in the Worker‘s Compensation Act, that total disability is the maximum disability possible under the Act. If an employee is receiving monthly permanent partial disability payments, which is the usual case, and then receives a temporary total disability award, the permanent partial disability payments should be suspended during the period of temporary total disability and resumed when the period of temporary total disability has ended. An employee who has received a lump sum award should be treated similarly, i.e., his permanent partial disability should be deemed to be suspended during the period of temporary total disability.
Parnell v. State ex rel. Wyoming Worker‘s Compensation Div., 735 P.2d at 1369.
Despite Parnell, the Division argues that a TTD award is foreclosed by
We turn then to the question of whether the Medical Commission abused its discretion in concluding that Hernandez had failed to establish, by a preponderance of the evidence, her claim for TTD benefits, i.e., her claim she suffered an increase in incapacity due solely to the injury. Whether an increase in incapacity is due solely to the original work-related injury is a question of fact. Jackson v. J.W. Williams, Inc., 886 P.2d at 603.
However, the Medical Commission did not take into consideration that Hernandez might be entitled to TTD benefits pursuant to
Hernandez also argues she is entitled to TTD benefits under
CONCLUSION
Under