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In re Worker's Compensation Claim of Boe

September 17, 2009

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF ALAN D. BOE, AN EMPLOYEE OF JIM BRIDGER POWER PLANT,
ALAN D. BOE, APPELLANT (PETITIONER),
v.
STATE OF WYOMING, EX. REL., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, APPELLEE (RESPONDENT).



Appeal from the District Court of Sweetwater County, The Honorable Jere A. Ryckman, Judge.

The opinion of the court was delivered by: Kite, Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

KITE, J., delivers the opinion of the Court; BURKE, J., files a dissenting opinion.

[¶1] Alan D. Boe appeals from the district court's order affirming the Office of Administrative Hearings' (OAH) denial of his claim for worker's compensation benefits for failure to timely file his application for temporary total disability (TTD) benefits. He claims that he was excused from filing the application because an OAH decision was pending on an earlier claim he filed involving the same injury. Alternatively, he asserts that the Workers' Safety and Compensation Division (Division) should be estopped from denying him benefits by its failure to request recertification despite knowing that he had returned to TTD. We reverse, although on different grounds than those asserted by Mr. Boe.

ISSUE

[¶2] Mr. Boe presents the following issue for this Court's consideration:

Was the Denial of Temporary Total Disability Benefits for failure to file a new application for TTD in accordance with the law?

The State rephrases the same issue.

FACTS

[¶3] Mr. Boe injured his right arm on May 27, 2005, while working at the Jim Bridger Power Plant near Point of Rocks in Sweetwater County, Wyoming. He continued to work until June 14, 2005, when orthopedist Nick DiGiovine diagnosed his condition as an injury to his right ulnar nerve with some medial and lateral epicondylitis ("tennis elbow"), and restricted him from work. Mr. Boe then applied for worker's compensation benefits. The Division initially took the position that the injury was not compensable and denied the claim. The Division later withdrew its objection and the OAH set for hearing the matter of Mr. Boe's entitlement to TTD benefits.

[¶4] In the meantime, on June 30, 2005, Dr. DiGiovine had released Mr. Boe to work with the limitation that he was not to lift more than eleven to twenty-five pounds. The lifting restriction remained in effect through August, when Dr. DiGiovine determined Mr. Boe could not work even with the restriction and ordered additional medical tests. Dr. DiGiovine then certified that Mr. Boe was unable to work until December 15, 2005. On that date, he released him to return to full duty work.

[¶5] Despite the release to return to work, Mr. Boe continued to have problems with his right arm and, in April of 2006, Dr. DiGiovine placed him back on restricted duty. Mr. Boe did not file a claim for further TTD benefits allegedly because a Division claims analyst told him there was nothing the Division could do until his earlier claim was decided. On August 29, 2006, the OAH awarded him TTD benefits retroactively for the period beginning June 30, 2005, through December 14, 2005, the date Dr. DiGiovine had released him to return to full duty work.

[¶6] The present matter began on January 29, 2007, when Mr. Boe filed an application for TTD benefits for the period from April 13, 2006 through December 14, 2006. The Division denied the claim for the period from April 13 to November 30, 2006, on the ground that Mr. Boe failed to timely file for TTD benefits for that period.*fn1 Mr. Boe requested a hearing. After the hearing, the OAH upheld the denial, finding that his failure to timely file for TTD benefits was not excused by the fact that his earlier claim was pending. The OAH also rejected his claim that the Division should be estopped from denying his claim because it knew he had returned to TTD but had not requested recertification. Mr. Boe filed a petition for review of the OAH decision in district court. The district court affirmed the OAH, and he appealed to this Court.

STANDARD OF REVIEW

[¶7] The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are questions of law. Alcorn v. Sauer Drilling Co., 2006 WY 15, ¶ 6, 126 P.3d 924, 925 (Wyo. 2006). We apply a de novo standard when reviewing questions of law. Id. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Id. We afford no deference to the agency's determination, and will correct any error made by the agency in interpreting or applying the law. Id. We also ...


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