Appeal from the District Court of Washakie County The Honorable Robert E. Skar, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] This is an appeal from a district court order affirming a determination by the Office of Administrative Hearings (OAH) denying workers‟ compensation benefits to the family of Raul Bejarano Gomez (Gomez) on the ground that Gomez‟s death was not compensable under Wyo. Stat. Ann. § 27-14-102(a)(xi) (LexisNexis 2009). We will affirm the district court and the OAH because neither committed an error of law in finding that Gomez‟s death did not arise out of his employment, but occurred under circumstances fitting the exception to "injury" found in Wyo. Stat. Ann. § 27-14-102(a)(xi)(H) for injuries incurred while engaged in recreational or social events.
[¶2] Whether the Findings of Fact, Conclusions of Law and Order entered by the OAH, holding that Gomez‟s death was not an injury as defined by Wyo. Stat. Ann. § 27-14-102(a)(xi), is contrary to law?
WYO. STAT. ANN. § 27-14-102(a)(xi)(H)
(xi) "Injury" means any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer‟s business requires an employee‟s presence and which subjects the employee to extrahazardous duties incident to the business. "Injury" does not include:
(H) Any injury sustained while engaged in recreational or social events under circumstances where an employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee's normal job duties or as specifically instructed to be performed by the employer; . . . .
[¶3] The material facts are not in dispute. Gomez was employed by Sundown, Inc. as a sheepherder on the Gooseberry Creek Ranch in Washakie County, Wyoming. Gomez‟s brother-in-law, Sergio Ambrosio-Rojas (Ambrosio-Rojas), was similarly employed. Both men were Peruvian nationals working legally in the United States under a Sheepherder Contract through a government program. Their primary duty was the "care and tending of sheep while on the range or pasture, for which the worker is on call 24-hours a day, 7 days a week, Sundays and holidays included." Sheepherders did not actually work 24 hours each day, but were on call, especially during lambing season, and for things such as predator control. Gomez and Ambrosio-Rojas shared a residence that was provided for them on the ranch. Gomez‟s death occurred during lambing season, at a time when the sheep under his care were in a pasture about a mile and a half from the residence.
[¶4] On April 22, 2007, Gomez and Ambrosio-Rojas, without permission, took a ranch vehicle off the ranch to help neighbors brand calves, after which they each consumed approximately three cans of beer. At about 6:00 p.m., Ambrosio-Rojas drove the two men into Worland, a nearby town, where they purchased a 30-pack case of beer. The two men began drinking on the way back to their residence, and they continued to drink throughout the night. Sometime after 10:00 p.m., they began to argue in the living room of their residence over the amount of money that Ambrosio-Rojas was sending back to Peru for his family. The argument escalated into a fight, with the men punching and kicking each other. Eventually, Ambrosio-Rojas grabbed the rifle that was provided to them for predator control and shot Gomez in the back, killing him instantly.
[¶5] On April 27, 2007, the Consul General of Peru in Denver filed a report of injury with the Wyoming Workers‟ Safety and Compensation Division (the Division). On May 31, 2007, the Division denied benefits on the ground that the injury was caused by Gomez‟s intoxication, and that the incident did not meet the definition of injury. The Consul General responded with a request for a ...