*1 (Petitioner), ALLEN, Appellant Donna

v. SCHOOL COUNTY NATRONA ONE, Appellee NO. DISTRICT (Respondent), rel., Wyoming, WYOMING ex STATE COMPENSATION WORKERS' (Defendant). DIVISION, Appellee No. 90-283. Wyoming. Supreme Court 8, 1991. May Easton, appellant. Casper, for

Eric A. Schwartz, Bon, Judith A. Studer Walker, appellee McCrary Casper, & No. Dist. One. County Natrona School Gen., Atty. John Joseph Meyer, W. B. Gen., Renneisen, Atty. and J.C. Deputy Gen., DeMers, appellee Atty. Sr. Asst. Wyo., rel. Workers' State of ex Compensation Div.

(cid:127) C.J., URBIGKIT, THOMAS and Before GOLDEN, JJ., and ROONEY BROWN, Retired JJ.

2 partial impairment by

BROWN, Justice, ated for a Retired. Baker, gave M.D. He a zero Gerald L. her Allen, employed while Appellant, Donna percent permanent impairment rat- County District appellee Natrona School by pursuant the American As- ing to Medical One, developed epicondyl- Number bilateral sociation Guide to the Evaluation of Perma- itis, as “tennis elbow.” commonly known (3rd Ed.1990). Impairment nent tempo- She received medical benefits but was denied rary total benefits Appellant resigned position her effective impairment rating. permanent partial a 31, January resig- At 1989. the time of her earning per nation she was hour. On $7.04 by appellant appeal on The issues stated 17, 1989, April appellant reemployed was are: by County the Natrona District School Appellant entitled to a Perma- 1. Is the as a held Number One teachers’ aide. She Disability award under W.S. nent Partial position during year and this the school 27-14-405(a), her when § 1989, through earning of the summer $5.25 impairment, by as defined W.S. physical per job hour. Her duties did not include 27-14-102(a)(xvi), rateable under is not § lifting repetitive using heavy or motions Medical Associ- the mandated American her arms or elbows. the Evaluation Per- ation Guide to of Physical Impairment? manent dispute parties The between the was Appellant precluded from 2. If the is Daniels, by Gayla tried an administrative receiving Disability Permanent Partial hearing officer. The was issue at benefits, equal protection guaranteed appellant permanently whether or not was Constitution, 1, by Wyoming Article partially disabled thus entitled to bene- 10, 4, 2 and Article Section or the Section pursuant to the fits and a vocational award 14th Amendment of the U.S. Constitution Wyoming Compensation Act. Workers’ violated? Nissan, a Phil vocational rehabilitation Wyoming for the State of De- counselor We affirm. Rehabilitation, partment of Vocational tes- dispute. in this case are not in The facts hearing regarding tified at the assistance employed by Allen Appellant Donna was provided by Department appellant to County the Natrona School District Num- epicondylitis. Fred due to her bilateral August as a cafeteria on ber One worker Pierce, Superintendent Assistant for Natro- 29, Appellant’s injuries occurred One, County na District Number School period over a of time and arose out of the regarding appellant’s prior posi- testified repetitive lifting stirring motions and as a cafeteria assistant and the later tion heavy lifting required in her em- occasional rehiring appellant as a teachers’ aide. ployment. diagnosis As a result of the appellant superior that a He stated was elbow, appellant underwent three tennis aide. teachers’ 1, surgical procedures: February 1988 for arm; right July tennis elbow release on trial, depositions At of Dr. Landon for tennis elbow release on the left Dr. Baker were introduced into evi- 15, 1988 for tennis el- arm and November testimony. in lieu their direct Dr. dence left arm. bow release on the physical impair- Landon indicated that his rating only upon based the Man- ment by Thomas Lan- Appellant was examined Orthopedic Surgeons. ual for He testified don, M.D., perma- evaluated for a and was appellant’s physical limitations were gave partial disability. Dr. Landon nent entirely subjective pain complaints due twenty percent permanent par- appellant any and not to loss of motion. Dr. Baker upon impairment to both arms based tial testified consistent with the A.M.A. Orthopedic Surgeons Evalu- the Manual for Guide, there was no loss of motion and that Physical Impairment. ating Permanent permanent impairment rating pursuant request Wyoming, At the of the State of percent. to the A.M.A. Guide zero would be Compensation Workers’ The (appellee), appellant was re-evalu- administration officer ruled: Division Impairment ratings provid- 27-14-405(a) this section. (Supp.1986) W.S. in accordance with section shall be ed physical upon the most current edition edition of be based upon the most current based American Medical Association’s only A.M.A. of the the A.M.A. Guide. *3 permanent im- guide to the evaluation of provided by Dr. Baker. rating was Guide (0%) pairment. percent rating was for a zero This im- physical physical impairment. 1986, Wyoming Legislature In the rating provided by Dr. Landon pairment 27-14-405(a) specified amended W.S. with W.S. was not consistent in “impairment ratings provided ac- that 27-14-405, upon in it based was § cordance with this section shall be based Surgeons Orthopaedic the Manual upon the most current edition of the Ameri- Therefore, and not the A.M.A. Guide. guide Association’s to the eval- can Medical Langdon is expressed by Dr. opinion the permanent impairment.” It is uation of statutory lan- with the not consistent appellant’s per- contention that she has a cannot be considered. guage and recognized physical impairment manent not * * * statutory lan- upon Based the an by the A.M.A. Guide and that there is * * *, has Employee-Claimant the guage 27-14- inconsistency between W.S. a prove that she has suffered failed to 27-14-405(a) 102(a)(xv) pre- and W.S. which disability. permanent partial injured employee receiving from vents an * * * Q'p-jjieEmployee-Claimant cannot partial disability benefits. She permanent earnings suffering for a loss of is receive an award that she has shown her adds demonstrating that capacity recognized by first the impairment without from an impairment. physical community supported by was a Since the there medical matter, not demon- physical impairment testimony physicians a in this of both strated, earnings can loss of receiving there be no from the benefit but is foreclosed statutory provi- capacity. conflicting because of Appellant states this conflict sions. The District Court for the Seventh Judicial among similarly situ- inequity creates an of the admin- District affirmed decision employees, some of whom injured ated hearing officer. istrative recognized under impairments have I those, herself, like A.M.A. Guide recognized by not impairments are whose error, assignment of In her first eligible are not for additional statute and hearing officer appellant contends that the benefits. applying in and the district court erred com

pertinent provisions of the workers’ question are not incon- The statutes complains al pensation statutes. She amended, 27-14-405(a), as sistent. W.S. request permanent partial a though her “impair- of the word limits the definition denied, there was substantial disability was 27-14-102(a)(xv) to in W.S. ment” as used showing permanent partial dis evidence specifically listed impairments mean those 27-14-102(a)(xv): by ability as defined W.S. in the A.M.A. Guide. partial disability” “Permanent .means relied officer The administrative any body limb or loss of use of the loss upon the case of Fischer v. State any injury known to or sense or other Compensation Divi Wyoming Workers’ surgery causing permanent medicine or sion, (Wyo.1987), which de 734 P.2d 558 bodily impairment of a function[.] partial recovery permanent disabili nied 27-14-405(a) pertinent W.S. in the evaluation ab ty and a vocational part: rating. physical impairment sence of a alone, however, Fischer, standing not impairment

[U]pon receipt physical of a * * * in that it was decid dispositive of this case resulting in a (June Repl.), 1983 27-12-403 under W.S. ed under W.S. partial disability as defined impairment rat require that 27-14-102(a)(xv), re- did not employee an shall which * * * upon the A.M.A. Guide. provided by ings based compensation be ceive 4 Guide, upon any reasonable or rational basis appellant had a rest the A.M.A.

Under rating. essentially arbitrary. Gray, The ad- Bell v. impairment and is percent zero officer, therefore, cor- 924, (Wyo.1963); ministrative United 377 P.2d by as dictated Fisch- rectly applied the law Corporation Wyoming En- Steel States partial denying permanent iner Council, 575 P.2d Quality vironmental found that The court vocational award. or Appellant has not (Wyo.1978). impairment is a showing physical “a any arbi- that there has been demonstrated an award for prerequisite upon in this case based trary classification Fischer, 734 P.2d at disability.” showing an requirement that, in the further found 561. The court the A.M.A. Guide in accordance with *4 impairment, showing an of absence of for order to obtain an award to determine the “any evaluation vocational disability or a vocational award. fruitless and loss proportions of such [is] not it rea- The issue is whether or legisla- the The fact that vacuous.” Id. legislature the to sonable and rational for impairment an must be specified ture require present that claimants evidence of A.M.A. Guide by use of the determined impairment pursuant to the A.M.A. an as stated in Fisch- not affect the law does permanent par- in to hearing officer Guide order recover er, administrative and the award, to correctly applied the Fischer decision and vocational tial requirement, applied this case. or not this as whether officer, hearing con- by the administrative II equal protection. stituted a denial of issue, appellant states that In her second not Appellant in this case was able is, similarly employees, that those situated partial disability or to recover a rated the impairments are under whose injury, epi- her vocational award because Guide, those not rated under A.M.A. (tennis elbow), condylitis did not rise to the differently. A.M.A. are treated Guide according being impairment an to naked statement that level of Appellant makes the similarly employees Appellant are treated had no limita situated the A.M.A. Guide. motion, differently, range but she does not elucidate with of tions either elbow’s complains of specifics. full, flexion, She because including exten were which treatment, equal protec- different Addition proration/supination. sions of the United States and tion standards any specific ally, there was no evidence are violated. Wyoming Constitutions deficit. Dr. neurological or motor function objective testified that there was no Baker The Fourteenth Amendment of appellant experienced pain. evidence that permits Constitution clas the United States appellant had no limitations on her Since similarly of individuals who are sification elbows, subjective complaints despite some situated, if are reason such classifications rating pursuant pain, impairment her arbitrary. Equal protection and not able percent. A.M.A. was zero These Guide persons rights means that the of all the law sup provide evidence to factors substantial upon the same rule under the must rest de port the administrative officer’s Am.Jur.2d, circumstances. 16A Con same Wyo for the termination. It is reasonable (1979). Law, Un stitutional §§ pass ming Legislature to a statute State Constitution, Wyoming one der the who compensation only for that does not allow of a statute on attacks the classification pain, pain such does not subjective when equal protection has the bur the basis of impairment.1 rise to the level of an proving that the statute does not den of junction extremity affected passing Guide loss of of the We that the A.M.A. does note (Empha- impairment great pain, that is as as 100%." for when allow for an added.) great enough impair- Guide for a pain to cause an sis rating A.M.A. instances, Guide, example, pain for page in certain On 41 of the A.M.A. 3rd ment. edition, spinal “persists peripheral nerve pain associated with it is stated that which when impairment. despite appropriate treatment can result in a hearing officer’s in the find no error We

determination.

Affirmed J., dissenting

ROONEY, files a Retired opinion. Munker, Defend- Leonard D. State Public Weerts, er, Asst. Public De- Steven E. Sr. Retired, ROONEY, Justice, dissenting. fender, Gosar, Appellate Coun- and David here disagree the result I do not with sel, appellant. However, I do not believe reached. Gen., Atty. Sylvia L. Joseph Meyer, B. authority to has the examiner Gen., Hackl, Atty. Byrne, Karen A. Deputy and, officer independent judicial act as an Lauer, Atty. Gen., Theodore E. Asst. Sr. therefore, stated for the reasons dissent Assistance Pro- Director of the Prosecution Compen- Workers’ State Jr., Fogarty, gram, and William A. Student Halstead, 795 P.2d 760 Division sation Pro- Intern for the Prosecution Assistance (Wyo.1990). appellee. gram, for *5 URBIGKIT, C.J.,

Before THOMAS, CARDINE, MACY and GOLDEN, JJ.

OPINION MACY, Justice. FISCHER, Appellant

Bruce J. appeals Fischer from Appellant Bruce J. (Defendant), felony larceny. his conviction for remand. We reverse Wyoming, Appellee STATE of following issues Appellant presents the (Plaintiff). for our review: No. 90-142. I ISSUE presented on evidence Was sufficient Supreme Wyoming. Court guilty Shop larceny to sustain the Kwik May verdict? II ISSUE charges the two joinder Did his constitutional deny Appellant case trial? right to a fair 16, 1989, morning Early in the of June department County sheriff’s Campbell larceny at report possible of a received a twenty- Shop, a Antelope Valley Kwik Gillette, Wy- store four-hour convenience investigating officer deter- oming. The money previous day two mined that on the Shop Kwik taken from the bags had been the check-out counter located behind safe money the store. One of the in the front of $2,238.90 currency, loose bags contained checks, bag con- coins, the other The safe had in rolled coins. tained $169 employee open left intentionally been